. ,. 


KEPORTS    OF   CASES 

ARGUED  AND  DETERMINED 

IN  TOE 

COURT  OF  CHANCERY, 

THE  PREROGATIVE  COURT, 

AND,  ON  APPEAL,,  IN 

THE  COUET  OE  EEROES  AND  APPEALS, 


OP  THE 


STATE    OF    NEW   JERSEY. 


CHARLES  EWING-  GREEN,  Reporter. 


■V^OLTJIvIE   I. 

SECOAW  EDITION, 


WITH  RSFERENCES  SHOWING  WHERE  THE  CASES  HAVE  BEEN   CITED,  AF- 
FIRMED, OVERRULED,  QUESTIONED,  LIMITED,  ETC.,  DOWN   TO    TART 
I,  VOL.  XXXIX,  N.  J.  LAW  REPORTS  (x  VROOM),  AND  PART  I, 
VOL.  XXVIII,  N.  J.  EQ.  REPORTS  (l  STEW.),  INCLUSIVE. 


By  Join  Linn,  Esq.,  of  the  Hudson  Co.  Bar. 


JERSEY   CITY: 

FREDERICK  D.  LINN  &  CO. 

1 886. 


r  ikcV\i 


Cliaiicellor 

DURING    THE    PERIOD    OF    THESE    REPORTS, 

Hon.  henry  W.  GREEN. 


Judges  of  the  Court  of  Errors  and  Appeals. 


EX   OFFICIO   JUDGES. 

Hon.  henry  W.  GREEN,  Chancellor. 

"  EDWARD  W.  WHELPLEY,  Chief  Justice. 

"  E.  B.  DAYTON  OGDEN, 

"  LUCIUS  Q.  C.  ELMER, 

"  DANIEL  HAINES, 

"  PETER  VREDENBURGH, 

"  JOHN  VAN  DYKE, 

«  GEORGE  H.  BROWN, 


Associate    Justices 
Supreme    Court, 


Judges    Specially   Appointed. 


Hon.  JOHN  M.  CORNELISON. 
"     WILLIAM  N.  WOOD. 
"     JOSEPH  COMBS. 
«     ROBERT  S.  KENNEDY. 
"      GEORGE  F.  FORT. 
"      JOSHUA  SWAIN,  to  March  19,  1863. 
"     EDMUND  L.  B.  WALES,  from  March  19,  1863. 

3 


778392 


]SrE\\^   JERSEY    REPORTS. 


LAW    REPORTS. 


COXE'S  KEPORTS,       - 
PENNINGTON'S  REPORTS, 
SOUTHARD'S 
\  HALSTED'S 
GREEN'S 
HARRISON'S 
SPENCER'S 
ZABRISKIE'S 
DUTCHER'S 
VROOM'S 


1 

vol. 

-     2 

2 

-    7 

3 

-     4 

■* 
i. 

-     4 

5 

-     1 

EQUITY    REPORTS. 

SAXTON'S  REPORTS,          _        -        _        .  l  vol. 

GREEN'S            "                3  " 

HALSTED'S       " 4  " 

STOCKTON'S    "                3  " 

BEASLEY'S      "            .        _        _        .        .  2  " 

McCARTER'S    "                2  " 

C.  E.  GREEN'S " 1  " 

5 


CASES 
REPORTED  IN  THIS  VOLUME. 


Ai                                Davison's  executors  V.  Johnson..  112 
Del.  &  Rar.  Canal  and  C.  &  A. 

Allen,  Straiten  V 229      R.  &  T.  Co's  v.  Ear.  &  Del. 

Anshutz  V.  Anshutz 162      Bay  R.  Co 321 

Atwater  V.  Walker  42  Demarest  v.  Berry 481 

Atwood,  Keeney  v 35|Demarest,  Frey  v 236 

Dialogue,  Stratton  v 70 

Diercks  v.  Kennedy 210 

Duncan,  Smith   v 240 


B. 


Bedford    v.    Newark    Machine 

Company 117 

Belford  v.  Crane 265 

Benson  V.  Wolverton 110 

Berckmans  v.  Berckmans 122 

Berry,  Demarest  v  '...  481 

Botsibrd,  Crowell  v 458 

Bragaw,  Way  v 213 

Brown,   Culver  v 533 

Burlew  v.  Hillraan 23 

Burnham  v.  Dalling 144,  310 


C. 


Central  Railroad  Company,  Mor- 
ris Canal  and  Banking  Com- 
pany V 419 

Chattin,  AdamS.,  In  re 496 

Child,  John  M.  B.,  In  re 498 

Clark,  Jordan  v 243 

Cook,  Shipman  v 251 

Crane,  Belford  v 265 

Crowell  v.  Eotsford 458 

Culver  V.  Brown 533 

Cummins,  Johnson  v 97 

Cummins  v.  Little 48 


D. 

Dalling,  Burnham  v 144, 

Daly,  Randolph  v 


310 
313 


Fluke  v.  Fluke's  executors 478 

Fredericks,  Sayre  v 205 

Freeman  v.  Scofield 28 

Frey  v.  Demarest 236 


G. 


Gariss  v.  Gariss 79 

Garrett,  Johnson  v 31 

Giveans  v.  McMurtry 468 

Gould  V.  Tingley 501 

Gregory,  Miller  v 274 

Grinnell    v.    Merchants    Insur- 
ance Company 283 


H. 


Hillman,  Burlew  v 23 

Hoagland  V.  Titus  44 

Hodges,  Robert  v ....  299 

Hopper  v.  Hopper 147 

Hopper  V.  Malleson's  executors..  382 
Howard  v.  Howard's  executors..  486 

Hudnitv.  Nash 550 

Hudson  V.  Trenton  Locomotive 
and    Machine   Manufacturing 

Company 475 

Hutcheson   v.   Peshine 167 


VJU 


TABLE  OF  CASES. 


IMunn,  Kecne  v. 


393 


In  re  Adam  S.  Chattin 496| 

In  re  John  M.  B.  Child 498' 

In  re  Morris  Weis 318 

J. 

Janeway,  Nicholson  v 285 

Jersey  City  and    Bergen   Point 

Plank  Road  Co.,  8tory  v 13 

Johnson  v.  Cummins 97 

Johnson,  Davison's  executors  v..  112 

Johnson  v.  Garrett 31 

Jordan  v.  Clark 243 

K. 

Kearney  v.  Macomb 189 

Keene  v.  Munn 398 

Keeney  v.  Atwood 35 

Kennedy,  Diercks  v 210 

Kimball,  Rose  v .■^. 185 

Kirkpatrick  v.  Winans 407 

L. 

Lind,  Walter  v 445 

Little,  Cummins  v 48 

Lloyd,  Michner  v ...  38 

Long's  administrator  v.  Long...  59 


M. 

Macomb,  Kearney  v 

Malleson's  executors,  Hopper  v.. 

Marsh  v.  Marsh 

Matthieson,  Morris  Canal  and 
Banking  Company  v 

McGee  v.  Smith 

McMurtry,  Giveansv 

Merchants  Insurance  Company, 
Grinnell  v 

Michner  v.  Lloyd 

Miller  v.   Gregory 

Moores  v.  Moores 

Morris  Canal  and  Banking  Com- 
pany V.  Central  Railroad  Com- 
pany  

Morris  Canal  and  Banking  Com- 
pany V.  Matthieson 

Morris  County  Bank  v.  Rock- 
away  Manufacturing  Com- 
pany   

Muir  V.  Newark  Savings  Insti- 
tution   


189 
382 
391 

443 

462 
468 


N. 


Nash,  Hiidnit  v 550 

Newark  Machine  Company,  Bed- 
ford V 117 

Newark     Savings     Institution, 

Muir  V 637 

Nicholson  v.  Janeway 285 

Norcom  V.  Rogers 484 

Norris  v.  Thomson's  executors, 
218,  542 


P. 

Peshine,  Hutcheson  v 167 

Pettit,  Thorp  v 488 


E. 

Randolph  v.  Dalv 313 

Rar.  &  Del.  Bay  R.  Co.,  Del.  & 
Rar.  Canal  and  C.  &  A.   R.  & 

T.  Go's  V 321 

Ralhboije,  Young's  administra- 
tor V 224 

Reed's  executors  v.  Reed 248 

Ricamio,  Tappan's  executor  v...     89 

Robert  v.   Hodges 299 

Robinson,  Van  Doren  v 256 

Rockaway  Manufacturing  Com- 
pany, Morris  County  Bank  v..  150 

Rogers,  Norcom  v 484 

Rose  V.  Kimball 185 

Rose,  Weart  v ....  290 

Rowe's  executors  v.  White 411 


283 

38 

274 

275 


419 


174 

28 

251 

453 


Sayre  V.  Fredericks 205 

Sayre's  administrator  v.  Sayre...  505 

Schenck  v.  Schenck's  executors... 

Scotield,  Freeman  v 

Shipman  v.  Cook 

Shivers,  Swedesborough  Church 
V - 

Slack,  Weatherby  v 491 

443  Smithy.  Duncan 240 

Smith,  McGee  v 462 

Smith  V.  Vreeland 198 

150  Story  v.  Jersey  City  and  Bergen 

I     Point  Plank  Road  Company..     13 
537'Stratton  v.  Allen 229 


TABLE  OF  CASES. 


IX 


Stratton  v.  Dialogue 70 

Swedesborough  Church  v.   Shi- 


453 


T. 

Tappan's  executor  v.  Eicamio... 

Thomson's  executors,  Norris  v. 
218, 

Thorp  V.  Pettit 

Tingley,  Gould  v 

Titus,  Hoagland  v 

Trenlon  Locomotive  and  Ma- 
chine Manufacturing  Com- 
pany, Hudson  V 


89 


488 

501 

44 


475 


Vreeland  v.  Vreeland's  admin- 
istrator   512 


W. 


Walker,  Atwater  v 42 

Walling  V.  Walling S89 

Walter  v.  Lind 445 

Way  V.  Bragaw 213 

_,„Weartv.  Rose 290 

^^oiWeatherby  V.  Slack 491 

Weis,  Morris,  In  re 318 

While,  Eowe's  executors  v 411 

Winans,  Kirkpatrick  v 407 

Winship  V.  Winship  107 

Woodward's     administrator     v. 

Woodward's  executors 83 

Wolverton,  Benson  v 110 

WyckoflFv.  Wyckoff 401 


Van  Doren  v.  Eobinson 256 

Vanduyne  v.  Vanduyne 93 

Vreeland,  Smith  v 198 


Y. 

Young's  administrator  v  Eath- 
bone 22^ 


CASES 
CITED  IN  THIS  VOLUME. 


A. 

Abbott  V.  Smith,  2  W.  Bl.  947... 
Ackerman  v.  Vreeland,   1   Mc- 

Cart.  23 417 

Adamson  v.  Hall,  1  Turner  & 

Russ.  258 

Adin'rs  of  Earle  v.  Earie,  Spen- 
cer 360 

Agar    V.    Regents    Canal     Co., 

Cooper  77 

Alderson  v.  Langdale,  3  Barn. 

&  Ad.  6G0 

Allen  V.  Hilton,  1  Fonb.  Eq.  425, 
Alley  V.  Desohamps.  13  Vesey 

225 

Ames  V.  N.  J.  Franklinite  Co.,  1 

Beas.  66 

Anderson  v.  Martindale,  1  East 

497 

Andrew   v.  Hancock,  1  Brod.  & 

B.37 

Andrews  V  .Wallace,  29  Barb.  350, 
Angell  V.  Draper,  1  Vernon  399, 

Anonymous,  1  Salk.  154 

Arnold  V.  Maynard,  2  tStory  354, 
Associates    v.    Jersey    City,     4 

Halst.  Ch.  715 

Atkinson  v.  Leonard,  3  Bro.  C. 

218 

Att'y-Gen'l  v.  Corp.  of  Poole,  4 

Mylne&C.  31 216 

Att'y-Gen'l  v.  Norwich,  16  Si- 
mons 225 ■ 


B. 

Bakcrv.  Morris' Adm'r,  10  Leigh 
284 

Bank  of  Maine  v.  Butts,  9  Mass. 
49 

Bank  of  Utica  v.  Wager,  2  Cow. 

712 

Barnes  v.  Gregory,  1  Head.  230, 


iBarron  v.  Barron,  24  Vt.  375....  523 
iBatten  v.  Earnley,  2  P.  W.  163,  488 
316  Beatv  v.  Lessee  of  Knowler,  4 

I     Peters  16« 372 

Beck  V.  Burdett,  1  Paige  305....  303 
Bedsole  v.  Monroe,  5  Ired.  Eq. 

Ill      313 250 

Belford  v.  Crane,  265 201 

198  Belknap  v.  Sealev,  2  Duer  570...  298 

iBell  V.  Gongh,  3  Zab.  667. 431 

378  Bellerjeau  v.  Ex'rs  of  Kotts,  1 

South.  359 181 

253  Benn  v.  Dixon,  10  Simons.  636..  416 
260  Bentham  v.  Haincourt,  Prec.  in 

Ch.  30 483 

83  Bergen  v.  Bennett,  1  Caine's  C. 

in  E.  16 480 

555  Berney  v.  Sewell,  Jac.  &  W.  630,  483, 

Bill  V.  Kinaston,  2  Atkyns  82...  41& 

29  Billings  v.  Baker,  28  Barb.  343...  107 

Billings  V.Taylor,  10  Pick.  460,  250 

36  Blade  v.  Noland,  12  Wend.  173,  403 

528  Blake  v.  Mamell,  2  Bail.  &  B. 

303      47 279 

62  Bonaparte  v.  C.  &  A.  R.  R.  Co., 

234      Bald.  205 378  427 

Boston  &  L.  R.  R.  Co.  V.  S.  &  L. 

436      R.  R.  Co.,  2  Gray  1 367 

Boughton  V.  Boughton,  2  Ves., 

238      Sen.,  12 196 

Boyd  V.  Hovt,  5  Paige  65.. ..216  315 

315  Brace  v.  Taylor,  2  Atk.  253 457 

Bracken  v.  Benllev,   1   Ch.    R. 

19      110 ." 416 

Brinkeriioff  v.  Brown,  4  .Johns. 

Ch.  671 216,  303-315 

Brinkerhoff  v.    Ex'rs   of    Mer- 

seiis,  4  Zab.  680 245 

Brainard  v.  Jones,  18  N.  Y.  35..     66 

69  Broadwell  v.  Stiles,  3  Halst.  58..  402 

Bromley  v.  Goodere,  1  Atk.  75..     60 

540  Brower  v.  Jones,  3  Johns.  230...  253 

Bunn  V.  Winlhrop,  1  Johns.  Ch. 

540   329 88 

297  Burr  v.  Burr,  2  Edw.  Ch.  448...  39S 
11 


xu 


CASES  CITED. 


Burtis  et  al.  v.  Adm'rs  of  Hop- 
kins   239 

Butler  V.  Butler,  1  Pars,  Sel. 
Cas.  329 280 

B.  and  D.  Turnpike  v.  Myers, 
6S.  &R.  12 ; 232 


C. 


Cairns  v.  Chaubert,  9  Paige  163, 

417  487 

Camidge  v.  AUenby,  6  Barn.  & 

Cress.  373 253 

Campion    v.   Kille,    1    McCart. 

229 43 

Campbell  v.  Mesier,    4    Johns. 

Cas.  334 HI,  313 

Carey  v.  Askew,  8  Vesey  492....  196 

Carter  v.  Carter,  4  Day  36 66 

Carter  v.  Thorn,  18  B.  Monroe 

613 66 

Cecil  V.  Briggs,  2  T.  R.  639 312 

Central    R.    R.  v.    Claghorn,    1 

Speer's  Eq.  545 232 

Chambers  v.  Chambers,  15  Si- 
mons 183 416 

Chambers  v.  Goldwin,  11  Ves.  1,  246 
Chambers  v.  Sunderland,  Halst. 

Dig.  216  508 

Chandler  v.  Herrick,  3  Stockt. 

499 279 

Chapman   v.    Tanner,   1   Vern. 

267...: 483 

Charles  v.  Dunbar,  4  Mete.  498,  484 
Charles  River  Bridge  v.  Warren 

Bridge,  11  Peters  420,  545..366  436 
Chesterman   v.    Mann,  9   Hare 

206 260 

Cheever  v.  Smith,  15  Johns.  276,  410 
Choate  V.  Choate,  3  Mass.  391...  395 
Church  V.  Church,  3  Ma.ss.  157..  395 
City  of  Providence  v.  St.  John's 

Lodge.  2  Rhode  Island  46 260 

Clark  V.  Clark,  24  Barb.  581 107 

Clark  V.  Clark,  8  Paige  152 416 

Clark    V.    Lord    Abingdon,    17 

Vesey  106 67 

Clarke  v.  Johnson,  2  Stockt.  287,  239 

Clarke  v.  Seton,  6  Vesey  411 60 

Clarke  v.  Turton,  11  Vesey  240,  276 
Clarkson  v.  Depevster,  3  Paige 

320 217  303 

Clason  V.  Church,  1  Johns.  Case. 

29 318 

Clutch  V.  Clutch,  Saxt.  474 896 

Coates  v.  Cheever,  1  Cowen  460,  250 
Collins  V.  Collins,  2  Mylne  &  K. 

703 417  487 


Conduittv.  Soane,  1  Collyer  285, 

' 416 

Consequa  v.  Fanning,  3  Johns. 

Ch.  690 477 

Cook  V.  Cook,  2  Beas.  268 .,  280 

Cook  v.  Johnson,  1  Beas.  54 272 

Cook  V.  Tousey,  3  Wend.  444...  65 
Coppring  v.  Cooke,  1  Vern.  270  483 
Coppuck   V.  Wilson,   3   Green's 

Ch.  75 503 

Corey  v.  Corey,  3  Stockt.  400....  165 
Cotheal  v.  Blydenburgh,  1  Halst. 

Ch.l9 43 

Couse  v.   Boyles,   3   Green  Ch. 

212 ". 298 

Covenhoven's  Case,  Saxt.  19 199 

Covenhoven  v.  Shuler,  2  Paige 

132 487 

Cox  V.  Coykcndall,  2  Beas.  138..  245 
Coe  V.  Halsted,  1  Green  Ch.311,  94 
Craig  V.  Hone,  2  Edw.  Ch.  554..  91 
Craig  v.  Leslie,  3  Wheat.  563....  480 
Cranston    v.    Johnson,    1    Hov. 

Sup.  to  Ves.,  Jr.,  267 28 

Croton  Turnpike  Co.  v.  Ryder, 

1  Johns.  Ch.  615 378 

Cruger  v.  Daniel,  1  McMull.  Eq. 

157 69 

Cumberland    v.    Coilrington,    3 

Johns.  Ch.  229 400 

Cumming  v.  Slater,  1  Younge  & 

Col.  484 311 

Cunliii"  v.  Manchester  &  B.  C. 

Co 18 

Curtiss  V.  Leavitt,  1  Smith  111..  234 
Cuyler  v.  Moreland,  3  Paige  273, 

215,  303-316 


D. 


Dailey  v.  Dailey,  Wright  514...  140 
Davies  v.  Davies,  9  Ve.^ey  461...  Ill 
Davis  V.   Curtis,   2    Chan.    Cas. 

226 '. 60 

Davis  v.  Davis,  2  Addams.  223..  405 

Davis  v.  Leo,  6  Vesey  784 425 

Davis  V.  Sigourncy,  8  Mete.  487,  405 
Davison  v.  Franklin,  1  Barn.  & 

Ad.  142 213 

Decouche  v.  Savetier,  3  Johns. 

Ch.  222 238 

Dennison  v.  Imbrie,  3  Wash.  C. 

C.  396  253 

Den  V.  Dummer,  Spencer  86 436 

Den  V.  Gaston,  4  Zab.  818  227 

Den  V.  Kimble,  4  Hal.st.  337 312 

Den  V.  O'Hanlon,  1  Zab.  582 227 


CASES  CITED. 


Xlll 


Denley  v.  Moore,  1  Barn.  &  Aid. 

123 

Depeyster      v.      Clendining,     8 

Paige  303 

DeRiemer    v.     DeCantillon,     4 

John.  Cli.  85  

Dewar  v.  Span,  3  Term  R.  425.. 
Dickev  V.  Malechi,  6  Missouri, 

177' 

Dike  V.  Greene,  4  Rhode  Island 

285 

Dillebaugh's  Estate,  4  Watts  177, 
]>ilIon  V.  Dillon,  3  dirties  86... 
Disosway  v.  Bank  of  Washing- 
ton, 24  Barb.  60 

Doe  V.  Roe,  1  Hopk.  276 

Dolman  v.  Cook,  1  McCart.  56, 

28 

Doneraile   v.  Doneraile,  Buller 

N.  P.  296 

Donnington  v.  Meeker,  3  Stockt. 

362 : 

Doughtv  V.  S.  &  E.  R.  R.  Co.,  1 

Zab.  442 

Drake  v.  Drake,  Halst.  Dig.  385, 

Dux  Bucks  V.  Gaver,    1   Vern. 

257 /. 


E. 


Eads  V.  Williamson,  4  DeG.,  M. 

&  G.  691 83 

Eagleson  v.  Shotwell,  1  Johns. 

Ch.  536 

Earl  V.  DeHart,  1  Beas.  280 

Early  v.  Doe,  16  How.  610 

Edgar  v.  Clevenger,   1  Green's 

Ch.  258 

Edgell  V.  Haywood,  3  Atk.  357, 

303 

Elliott  V.  Pell,  1  Paige  Ch.  268.. 
En  Held  Toll  Bridge  Co.  v.  H.  & 

N.  H.  R.  R.  Co.,  17  Conn.  40.. 
Evans  V.  Jackson,  8  Sim.  217... 
Everett  v.  Stone,  3  Story  453.... 
Exton  V.  Zuie,  1  McCart.  501... 
Ex  parte  Baker,  1  Coop.  Ch.  Cas. 

205 

Ex  parte  Bumpton,  Mosely  78... 
Ex  parte  Earl  Ferrars,  Moselv 

332 '. 

Ex  parte  Hall,  7  Vesey  260 

Ex  parte  Smith,  1  Swanst.  4 

Ex  parte  Southcot,  2  Ves.,  Sen., 

403 

Ex  parte  Tomlinson,   1  Ves.   & 

B.58 

Er  parte  Watkins,  3  Peters  193.. 


86 

416 

232 
211 

405 


Ex'rs  Condict  v.  King,  2  Beas. 

383 417 

Ex'rs  of  Cogdell  v.  Devisees  of 

Testator,  3  Dess.  373 222 

Ex'rs   of  Conover   v.    Conover, 

Saxt.  412 217  312 

Ex'r    of    Henry    v.    Dillev,    1 

Dutch.  302 ..". 526 


260 
582' 
3941 


Fanning  v.   Dunham,   5  Johns. 
Ch.  122 473  553 

t-jj^'Farnham  v.  Campbell,  10  Paige 

310 


598. 


43 


453  {l- 

427 
280 


483 


263 

453 

379 
384 

303 

317 
555 


217 
Fawkes  v.  Gray,  18  Vesey  131...  417 
Fellows  v.  Fellows,  4  Cowen  682,  216 
Fennimore     v.     Fennimore,     2 

Green  Ch.  296 181 

Field  v.  Jackson,  2  Dick.  599...  425- 

Fiske  V.  Cobb,  6  Gray  144 417 

Fisler  v.  Porch,  2  Stockt.  248...  275 
Flagg  V.  Bonnell,  2  Stockt.  82...  113 
Fletcher   v.    Ashburner,  1   Bro. 

Ch.  Cas.  497 480 

Foley  V.  Burnell,  1  Bro.  C.  C. 

279 416  488 

Fordvce  v.  Willis,  3  Brown's  Ch. 

588 

Forman  v.  Blake,  7  Price  654. 
Forman  v.  Southwood,  8  Price 

572 

Francis  v.  Wilson,  1  Ryan  &  M. 

105 

Frazier  v.  Frederick,  4  Zab.  162.. 
Freeman  v.  Deming,  3  Sand.  Ch. 

332 

French  v.  Shotwell,  6  Johns.  Ch. 

235 

Fulton  Bank  v.  Beach,  1  Paige 

433 


206 
311 

311 

65 
173 

234 

232 


553 


367  G. 

258 

234  Garrabrant  v.  Lawrence 239 

509  Gaskarth  v.  Lord  Lowther,  12 

Vesev  107 260 

498  Gaskeli  v.  Sine,  2  Beas.  400 193 

319iGermond  v.  Germond,  6  Johns. 

Ch.  347 395 

319'Ge.st  V.  Flock,  1  Green  Ch.  108..  480 
498|Gibbons  v.  Dawlev,  2  Chan.  Cas. 
498;     198 _ 239 

[Gibson   V.   Egerton,    1   Dickens 
497      408 60 

iGillespie  v.  Alexander,  3  Rus.s. 

497!     130 284 

227,Glegg  V.  Legh,  4  Madd.  208 397 


XIV 


CASES  CITED. 


Godfrey  v.  Maw,  1  Younge  & 

Collyer  484 311 

Goepp  V.  Garteser,  11  Casey  130  161 
GoJdhawk   v.    Duane,   2   Wash. 

Ch.  323 65 

Gordon  v.  Preston,  1  Watts  385..  232 
Gorgass  v.  Douglass,  6  Serg.  & 

R.  612 160 

Gormley  v.  Oakev,  7  Louis  452..  297 

Gough  V.  Bell,  2  Zab.  457..  366 

Graham  v.  Call,  5  Munf.  396....  260 

Grant  v.  Grant,  2  Curties  16 133 

Griiy's  Estate,  1  Burr.  327 524: 

Gray  v.  Fox,  Saxton  259 530 

Greenaway  v.  Adams,  12  Vesey         | 

395 148 

Griffiths  V.  Smith,  1  Vesey  97...  417| 

Groff  V.  Jone.s,  6  Wend.  522 94 

Grosvenor  v.  Allen,  9  Paige  74..  217 1 
Grosvenor  v.  Cook,  1   Dickens 

305 60 

G.  W.  K.  R.  Co.  V.  Eushout,  5 

DeG.  &S.  290 19 


H. 


91 
400 


Hale  V.  Thomas,  1  Vernon  349 
Hall  V.  Warren,  9  Vesey  608.:.  148 
Hallet   V.   Thompson,    5   Paige 

583 .^ 

Hamilton  v.  W^orley,  2  Vesey  62, 
Hammerton  v.    Hammerton,    2 

Hagg.E.  8  

Hammond  v.  Fuller,  1  Paige  197, 

Harris  v.  Clap,  1  Mass.  308 

Harri.son   v.  Battle,  1  Dev.  Eq. 

537 303 

Harrison  v.  Talbot,  2  Dana  258..  298 

Hart  V.  Hart,  1  Ch.  R.  260 416 

Hart  V.  Small  4  Paige  288 460 

Hartshorne  v.  Johnson,  2  Halst. 

108 

Harvev  v.  Harvey,  Repts.  Temp. 

Finch  363 ". 

Harvey  v.  Tebbutt,  Jac.  &  W. 

203 

Haven  v.  Foster,  9  Pick.  112.... 
Hayes  v.  Kershow,  1  Sandf.  Ch. 

261 

Hearie  v.  Greenback,  1    Vesey, 

Sen.,  298 

Heath  V.  Perry,  3  Atk.  101 

Heathcoate  v.  North  S.   R.   E. 

Co.,  2  Macn.  &  Gor.  100 19 

Hendricks  v.  Robinson,  2  Johns. 

Ch.  296 303 

Henkle  v.  Royal  Exchange  As- 
surance Co.,  1  Vesey,  Sen.,  320  473 


[Herbert  v.  Ex'r  of  Tuthill,  Sax- 

I     ton  141 480 

Herris  v.  Jamison.  5  T.  R.  556..  316 

iHind's  Estate,  5  Wheat.  138 523 

Holmes  v.  Holmes,  4  Barb.  295..  52(j 
Homer  v.  Shelton,  2  Melc.  206, 

I     417  488 

Hordipp  V.  Ottwav,  2  Saund.  106,  64 
Howard  v.  Howard,  1  Vern.  134,  239 
Howe  V.    Earl  of  Dartmouth,  7 

Ves.  137 416  487 

Howell  V.  Baker,  4  Johns,  Ch. 

118 242 

Hud.son  V.  Wadsworth,  8  Conn. 

348 417  488 

Hugh  A ud ley's  Case,  Hardress 

136 62 

Hughes  V.  Wicklifte,  11  B.  Mon- 
roe 202 66 

Hall  V.  Eddy,  2  Green  176 417 

Hunt  V.  Field,  1  Stockl.  36 176 

Hurd  V.  Cass,  9  Barb.  366. ..107,  526 


62  Innis  v.  McCrummin,  12  Martin 


425. 


In  re  Dyce  Sombre,  1  Phillips 
436 

In  re  Flint,  Shelf,  on  Lun.  91... 

Iln  re  Gordon,  2  Phillips  242 

133'ln  re  Mills,  2  Mylne  &  C.  38  n.  a., 

379jln  re  Waters,  2  Mvlne  &  C.  38, 

66  Izard  v.  Bodine,  1  Stockt.  311.... 


J. 


297 

319 
497 
319 
500 
500 
478 


227 
182 


.Jackson's  Case,  5  Vin.  Ab.  543,  261 

.James  v.  McKernon,   6  Johns. 
543 277 

Jennings  v.   Jennings,  2   Beas. 

I     38 280 

4831  Jersey  Citv  v.  M.  C.  &  B.  Co.,  1 
400l     Beas.  547 _. 437 

Ijohnson  V.  Cummings 273 

88  Johnson  v.  Mills,  1  Vesey,  Sen., 

I     282 91 

196'johnston's    Estate,   9    Watts   & 
246      Serg.  108 532 


Keigliley  v.   Brown,    16  Vesey 
344 311 


CASES  CITED. 


XV 


Kelly  V.  McCarthy,.  3  Eradf.  7...  526 
Kemp's  Leasee  v.    Kennedy,  5 

Cranch  173 227 

Ketlleby  v.  Kettleby,  2  Dickens 

514 '.: 60 

Keyes  v.  Moultrie  &  Palmer,  3 

Bosw.  1 540 

King  V.  Baldwin,  17  Johns.  3S4,  238 
King  V.  Ex'rs  of  Berry,  2  Green's         | 

Ch.480 , 239 

King  V.  King's  Adm'rs,  3"  Johns. 

Ch.552 531 

King  V.  Montague,  4  Barn.  &  Or. 

598 366 

Kirwane  v,  Blake,  2  Bi'o.  Pari. 

C.  333 62 

Knight  V.  Maclean,  3  Bro.  Ch. 

496 61 


Laroe  v.  Douglass,  2  Beas.  308 

:. 181  184 

Langworthv    v.    Chadwick,    13 

Conn.  42 417  488 

Lashley  v.  Hogg,  11  Yesey602..  284 

Law  V."  Hunter,  1  Euss.  100 476 

Law  V.  Kigby,  4  Brown's  Ch.  63,  218 
Lawrence    v.    United    States,    2 

McLean  581 66 

Leavitt  V.  Leavitl,  Wright  716..  279 
Leeke  v.  Bennett,  1  Atkyns  470,  416 
Lessee  of  McCullonghs  v.  Rod- 
erick, 2  Hammond  380  170 

Lewis    V.    Lord    Lechmere,    10 

Mod.  503 148 

Livingston's  Ex'rs  v.  Livingston, 

4  Johns.  Ch.  287 457 

Livingston     v.     Livingston,     4 

Paige   111 467 

Livingston     v.    Van     Ingen,    9 

Johns.  500 378 

Loftus  v.  Swift,  2  Sch.   &  Lef. 

655 483 

Logan  V.  Logan,  2  B.  Mon.  142..  280 
Lord  Diinsev  v.  Plunkett,  2  Bro. 

Pari.  C  251 62 

Lord   Lonsdale  v.  Shurch,  2  T. 

K.  ,388 61 

Loveden  v.  Loveden,  2  Hagg.  C. 

1 133 

Lowe  V.  Govett,  3  Barn.  &  Ad. 

303 366 

Lupton  V.  Lupton,  2  Johns.  Ch. 

628 246 

Lyon  V.  Clark,  4  Seld.  148 65 


M. 


Maokworth  v.  Thomas,  5  Vesey 

330 "..     62 

Maddeford  v.  Anstwick,  1  Sim. 

89 288 

Manchester    College    v.    Isher- 

wood,  10  Simons  476 311 

Mann  v.  Pearsop,  2  Johns.  37....  297 
Marquis  of  Hertford  v.  Boore,  5 

Vesey  719 '. 83 

Marsh  v.  Martindale,  3  Bos.  & 

Pull.  154 539 

Martin  V.  Mowlin,  2  Burr.  969...  206 
Marvin  v.    Bennett,    26  Wend. 

169 297 

Mason  v.  Gardner,  4  Bro.  Ch. 

436 553 

Massey  V.  Cureton,  Cheeves  181,  532 
Matter  of  Hoag,  7  Paige  312....  320 
Matter  of  Eogers,  1  Halst.  Ch. 

46 319 

Matter  of  Perkins,  2  Johns.  Ch. 

C.  124 499 

Matter  of  Pettit,  2  Paige  174...  499 
Matter  of  Price,  4  Halst.  Ch.  533,  319 
Matthews  v.  Newley,  1  Vern.  133,  239 
Mayor  of  Jersey  City  v.  Morris 

Canal  and  Banking  Co.,  1  Beas. 

551 42G 

McCosker  v.    Golden,   1   Bradf. 

64 107 

McEwen  v.  Broadhead,  3  Stockt. 

129 113 

McKibbin  v.  Brown,  1   McCart. 

13  259 

McMurtry  v.  Giveana,  2   Beas. 

351 212 

Meeker  v.  Marsh,  Saxton  198...  239 
Mel  ward  v.  Earl  of   Thanet,  5 

Vesey  720 263 

Merrill  v.  Emory,  10  Pick.  512,  417 
Merwin  v.  Smith,  1   Green  Ch, 

196 94 

Miller  v.  Ford,  Saxt.  364 473 

Miller  v.  Miller,  Saxt.  386 165 

Milward  v.    Earl  of   Thanet,   5 

Vesey  720 83 

Moflliit  v.  Barnes,  3  Caines  49 65 

Mohawk    Br.    Co.    v.   Utica   & 

Schenec.  R.  R.  Co.,  6  Paige 

554 380 

Mole  V.  Mole,  -1  Dick.  310 246 

Moore  v.  Blake,  1  Ball  &  Beat. 

62 82 

Moore  v.  Lyttle,  4  Johns.   Ch. 

184 458 

Morgan     v.     Schermerhorn,     1 

Paige  544 553 


arvi 


CASES  CITED. 


Morris  Canal  Co.  v.  Emmett,  9 

Paige  168 297 

Mosley  v.  Marshall,  27  Barb.  42,  400 
Moss  V.  Wood,  R.  M.  Char.  42..  65 
Moulin  V.  Insurance  Co.,  4  Zab. 

222 305 

Mower  v.  Kip,  6  Paige  88 69 

Munt  V.  Shrewsbury  &  C.  R.  R. 
Co.,  13  Beav.  1 19 

N. 

Nab  V.  Nab,  10  Mod.  404 206 

Naylor  v.  Field,  5  Dutcher  287, 

106,  273,  524 

Neate  v.  Duke  of  Marlborough, 

9  Sim.  60 804 

Nelson  V.   Matthews,  2  Hen.   & 

Munf.  164 298 

Neville  v.  Derueritt,  1  Green's 

Ch.  335 275 

Nevitt    V.    Gillespie,    1    How. 

(Miss.)  113 425 

Newburgh  Turnpike  Co.  v.  Mil- 
ler, 5  Johns.  Ch.  112 373 

North  American   Insurance  Co. 

V.  Graham,  5  Sandf.  S.  C.  197,  304 


O. 


O'Dell  V.  Young,  1  McMull.  Eq. 

155 532 

Ogden  V.  Gibbons,  4  Johns.  Ch. 

160 372 

Orcutt  V.  Orms,  3  Paige  459 532 

Ordinary  v.  Ex'rs  of  Smith,  3 

Green  92 238 

0.sborn  v.  Adams,  18  Pick.  247..  170 
Osgood  V.  Franklin,  2  Johns.  Ch. 

21 481 

Outcalt  V.  Disborough,  2  Green's 

Ch.  216-17 425 

Owens  V.  Dickenson,  1  Craig  & 

Ph.  48 105 


P. 

Pamplin  v.  Green,  2  Chan.  Cas. 
95 239 

Parker  V.  Williams,  4  Paige  439  460 
Park  hurst  v.  Cory,  3  Stock.  233,  94 
Parmlee  v.  Egan,  7  Paige  610...  217 
Peer  v.  Cookerow,  2  Beas.  136..  112 

Penn  v.  Butler,  4  Dail.  354 29 

Pennock  v.  Hoover,  5  Rawie  291,  160 
Peril  V.  Wallis,  2  Dallas  252 65 


Perkins  v.Cottrell,  15  Barb.  446,  526 
Pickering  v.  Pickering,  1  Beav. 

31 417  487 

Pick  ford    v.  Hunter,  5   Simons 

122 218 

I'ittenger  v,  Pittenger,  2  Green's 

Ch.l56  227 

Pitts  v.  Tilden,  2  Mass.  118 68 

Pontchartrain    R.    Co.    v.   New 
Orleans   &  C.  R.  R.  Co.,   11 

Louisa.  Ann.  253 331 

Porter  v.  Cox,  5  Maud.  80 Ill 

Powell  V.  Clark,  5  Mass.  355 297 

Pratt  V.  Rathbunn,7  Paige  271..  284 
Price    V.    Methodist  Church,    4 

Ham.  547 425 

Proprietors  of  Bridges  v.  Hobo- 
ken  Land  &  Improvement  Co., 

2  Beas.  81,94 372  436 

Proprietors  of  Stourbridge  Canal 
V.  Wheeley,  2  Barn.  &  Ad.  793, 

372 

Providence  Bank  v.  Billings,  4 

Peters  514 372 

Purse  V.  Snapiin,  1  Atk.  417 221 

Pultney  v.  Warren,  6  Vesey  92..     62 


Q. 


Quackenbu.sh  v.  Van  Blarcom...  302 
Quesnei   v.  Woodlief,  2  Hen.  & 
Munf.  173 298 


E. 

Randall  v.  Russell,  3  Mer.  193, 

416  487 

Ransom  v.  Nichols,  22  N.  Y.  110,  107 
Rapeiyea  v.  Rapelyea,  27  Barb. 

610 400 

Rebecca  Owings'  Case,  1  Bland 

Ch.290 497 

Read  v.  Drake,  1  Green's  Ch.  78,  508 
Reade   v.   Livingston,  3  Jolins. 

Ch.500 272 

Reed  v.  Eddy,  2  Green  176 487 

Remsen  v.  Remsen,  2  Johns.  Ch. 

501 ; 478 

Renner  v.  Bank  of  Columbia,  9 

Wheat.  581 403 

Rhodes  V.  Vinson,  9  Gill.  169...  406 
Richards  v.  Baker,  2  Atkvns  321..  416 
Richmond  R.  R.  Co.  v.  L.  R.  R. 

Co.,  13  Howard  83 366 

Riggs  V.  Taylor,  9  Wheaton  483..  403 


CASES  CITED. 


XVII 


River  Dunn  Navigation   Co.  v. 

N.   M.  R.  R.  Co.,  1  Railway 

Cas.  154 '.  378 

Robert  v.  Hodges,  1  C.  E.  Green 

299 467 

RockwelTv.Morgan,  2  Bcas.'sis'gi  250 

Rogers  v.  Allen,  3  Ohio  488 170 

Rogers  v.  Ralhbnn,  1  Johns.  Ch. 

367 553 

Rogers  v.  Vosburgh,   4   Johns. 

Ch.84 217 

Ross  V.  Adams,  4  Dutch.  160....  106 

Rons  V.  Noble,  2  Vern.  249 488 

Rowe  V.  White,  1  C.  E.  Green 

411  488 

Ruddle  V.  Ambler,  18  Ark.  369..  553 


S. 


Sailly  V.  Elmore,  2  Paige  497...  238 
Salter  v.  Williamson,   1  Green 

•  Ch.  480 239 

Sanders  v.  Richards,  2  Collyer 

568 258 

Scott  v.  Beecher,  5  Haddock  96..  400 
Scott  v.  Nesbitt,  2  Bro.  Ch.  C. 

641 473 

Scudder   v.   Trenton    Delaware 

Falls  Co.,  Saxton  694 378 

Seymour  v.  Seymour,  4  Johns. 

Ch.  409 238 

Shannon  v.  Merselis,  Saxton  413,  493 
Sharp  V.  Morrow,  6  Monroe  300,  477 

Sharp  V.  Speir,  4  Hill  76 384 

Shaw  V.  Shaw,  17  Conn.  189 279 

Sheddon  v.  Goodrich,  8  Vesey 

482 196 

Sherman  v.  Eldon,  1  Hilton  476..  525 
Sherwood  v.  Sanderson,  19  Vesey 

2g9 497 

Sh  irley  *  v."  Watts,"  3  At  k .'  2o6 .' ....  303 
Shottenkirk  v.  Wheeler,  3  Johns. 

Ch.  275  232 

Shumway  v.  Cooper,   16   Barb. 

556  107 

Sidney  v.  Sidney,  3  P.  W.  269...  277 
Simpson  v.  Denison,  10  Hare  51..  19 
Skillman  v.   Skillman,  2   Beas. 

403 201  271 

Slanning  v.  Style,  3  P.  W.  335, 

416  488 

Sloan  V.  Sommers,  2  Green  517..  453 
Smedes  v.  Honghtaling,  3  Caines 

48 65 

Smith  V.  Clarke,  12  Vesey  477...  276 
Smith  V,  Collyer,  8  Vesey  89....  426 
Smith  V.  Colvin,  17  Barb.    157, 

187  526 


Smith  V.   Moore's   Ex'r,    3   Gr. 

Ch.485 239 

Smith  V.Wilkinson 477 

Snyder  v.  Snyder,  3  Barb.  621...  526 
Spurrier  v.  Mayoss,  1  Vesey  531..  211 
Stanley  v.  Robinson,  1  Russ.  & 

M.  627 277 

State  V.  Bentley,  3  Zab.  538 436 

State  V.  Branin,  3  Zab.  484 38 

State  V.  Collector  of  Jersey  City, 

4  Zab.  108 389 

State  V.  Ford,  5  Blackf.  392 66 

State  V.  Way  man,   2   Gill  &  J. 

254 66 

State  of  Pennsylvania  v.  Wheel- 
ing B.  Co..  13  How.  519 379 

St.  Colnnibe's  Heirs  v.   United 

States,  7  Peters  626 477 

Stead's  Ex'rs  v.  Course,  4  Crauch 

403 32  384 

Stebbin  v.  Eddy,   4  Mason  414, 

297  299 

Stephenson  v.  Dowson,   3  Beav. 

349 221 

Stevens  v.  Ender.s,  1  Green  271..  226 

Stevens  v.  Post,  1  Beas.  408 275 

Stevens  v.  South  Davon  R.  R. 

Co.,  13  Beav.  48 19 

Stockton   v.    Ford,    11    Howard 

247 242 

Stokes  V.  Middleton,  4   Dutch. 

32 227 

Storm  V.  Mann,  4  Johns.  Ch.  21..  425 
Stoughton  V.  Leigh,  1  Taunt.  402,  250 
Stubbs  V.  Parsons,  3  Barn.  &  Aid. 

516 36 

Stukes  V.  Collins,  4  Desaus,  207,  532 
Swavze  v.  Swayze,  1  Stockt.  273..  303 
S.  &  H.  R.  R.  Co.  V.  L.  &  T.  & 

C.  R.  R.  Co.,  2  Phillips  666...     19 


Taylor  v.  Bell,  2  Vern.  171  473 

Taylor  v.  Stibbert,  2  Vesey  437..  261 
Taylor  v.  Wendel,  4  Bradf.  324..  400 
Tazewell  v.  Saunders,  13  Grattan 

354 69 

Tennants  v.  Gray,  5  Munf.  494..  65 
Tew   V.   Winterton,  3  Bro.  Ch. 

489 60 

Thomas  v.  James,  7  Watts  &  Serg. 

381 160 

Thorp  V.  M  acauley,  5  Madd.  218,  397 
Tiernan  v.  Wilson,  6  Johns,  Ch. 

413 32,52,     94 

Tom  1  in  v.  Tom  1  in,  1  Hare  236..  47(* 
Townsend  v.  Brown,  4  Zab.  87...  436 


XVIU 


CASES  CITED. 


Traphagen  &  Adams  v.  Koss 194 

Trevelvan  v.  Trevelyan,  1  Phill. 

149  .' 405 

Turner  v.  Bobinson,  1  Sim.  &S. 

313 216 

U. 

United  States  v.  Arnold,  1  Gall. 

360 66 

United  States  v.  Arrendondo,  6 

Peters  738 372  436 

United  States  v.  Fisher,  2  Cranch 

386 428 

V. 

Vachel  V.  Vaehel,  1  Chan.  Cas. 

129 416 

Valance  v.  Bausch,  28  Barb  633,  107 
Van   Bergen   v.  Van  Bergen,  2 

Johns.  Ch.  272 379 

Vandyke  v.  Chandler,  5  Halst. 

49 .  503 

Van  Mater  v.  Sickler,  1  Stockt. 

483 239 

Vannote   v.    Downey,  4    Dutch. 

219 526 

Van  Schaic  v.  Edwards,  2  Johns. 

Cas.  355 211 

Varet  v.  N.  Y.  Ins.  Co.,  7  Paige 

560 238 

Voorhees  v.  Bank  of  U.  S.,  10 

Peters  449 ._ 227 

Vroom  V.  Ditmars,  5  Paige  528, 

112  313 

W. 

Walcott    V.    Harris,    1    Rhode 

Island  404 66 

Waldron   v.  Waldron,  4  Bradf. 

114 400 

Walker  v.  Eastern  Co.  R.  R.  Co., 

6  Hare  594 148 

Walker  v.  Ren  my,  12  Casey  414..  524 
Walker  v.  Woodward,  1   Russ. 

110 476 

Wallace  v.  Fitzsimmons,  1  Dall. 

2-50 29 

Ware  v.  G.  J.  W.W.  Co.,  2  Russ. 

&M.  470 19 

Ware  v.Thompson,  2  Beas.  67...  473 
Warner  v.  Thurlo,  l5  Mass.  154..     66 


Ware  v.  Ware 163 

Wartnaby   v.  Wartnaby,  Jacobs 

377 485 

Watson  V.  Bonney,  2  Sandf.  S. 

C.  405 526 

Watson's  Ex'rs  v.  McLaren,  19 

Wend.  557 213 

Wav  V.  Bragaw,  1  C.  E.  Green 

213 316 

Westervelt  v.   Gregg,    2   Kern. 

202 107 

West  River  Bridge  Co.  v.  Dix, 

6  How.  529 367 

Whaley  v.  Norton,  1  Vern  484..  277 
Wheaton   v.    Phillips,    1    Beas. 

221 105 

White  V.   Medav,   2  Edw.   Ch. 

486 238 

White  V.  White,  5  Barb.  474....  526 
Whitelegg  v.  Whitelegg,  1  Bro. 

C.  C.  57 417 

Wiggins  V.  Armstrong.  2  Johns. 

Ch.  144 303 

Wikofi  V.  Davis,  3  Green's  Ch. 

224 493 

Wilder  v.  Keeler,  3  Paige  164...  284 

Wilks  V.  Davis,  3  Mer.  507 260 

Williams   v.    Brown,   4   Johns. 

Ch.682 303 

Williams  v.  Michner,  3  Stockt. 

520 302 

W^illiams  v.  Peyton's  Lessee,  4 

Wheaton  77 384 

Williams   v.   Thorn,    11    Paige 

464 91 

Wrlliams  v.  W^illiaras,  3  Green 

255 540 

Wilson  v.  Baptist  E.S.,  10  Barb. 

320 528 

Winter  v.  Henderson,  2  Halst. 

Ch.  31 493 

Wood  V.  Wood,  2  Paige  113 395 

Wood  v.  Monell,  1  Johns.   Ch. 

506 33 

Worley  v.  Glenworth,  5  Halst. 

Ch.  241 312 

W^yatt  v.  Marquis  of  Hertford,  3 

East  147 410 

Y. 

Young  V.  Chambers,  3  Harris 
267   161 

Young  V.  Frier,  1  Stockt.  465....  303 
Young  v.  Paul,  2  Stockt,  401....  149 
Yule  v.  Yule,  2  Siockt.  138 165 


CA-SES 


ADJUDGED  IN 


THE  COURT  OF  CHAA^CEM 

or  THE  STATE  OF  NEW  JEESEY, 

FEBRUARY  TERM,  1863. 


Henry  W.  Greex,  Esq.,  Chancellor. 


RuFUS  Story  vs.  The  Jersey  City  and  Bergen  Point 
I'lank  Road  Company,  and  others. 

1.  The  Court  of  Chancery  has  no  power,  by  injunction,  to  restrain  any 
citizen  from  petitioning  either  branch  of  the  legishiture  upon  any  subject 
of  legislation  in  wliich  he  is  interested.  Such  restraint  would  be  an  unau- 
thorized abridgment  of  the  political  rights  of  the  party  enjoined. 

2.  The  proper  office  of  Courts  of  Justice  is  to  adjudicate  upon,  and  to  pro- 
tect and  enforce  the  legal  and  equitable  rights  of  parties  litigant,  as  they 
are  established  by  existing  laws.  It  is  no  part  of  their  appropriate  function 
to  determine  in  advance,  wheilier  a  proposed  law  may  or  may  not  be  en- 
acted consistently  with  the  rights  of  parties,  or  to  interfere  directly  or  in- 
directly with  the  course  of  legislation. 

3.  Where,  at  the  time  of  the  grant  of  a  charter  to  a  corporation,  there  is 
a  general  law  of  the  state,  that  the  charter  of  every  corporation  granted  by 
the  legislature  shall  be  subject  to  alteration,  suspension  or  repeal,  in  the 
discretion  of  the  legislature,  the  legislature,  in  granting  such  charter,  must 
be  deemed  to  have  reserved  to  tliemselves  the  rightof  altering,  suspending 
or  repealing  the  same,  whenever,  in  their  discretion,  the  public  good  may 
require  it,  as  fully  as  if  the  reservation  were  inserted  in  the  charter.  And 
all  contracts,  express  or  implied,  resulting  from  the  act  of  incorporation 

Vol.  I.  A  13 


14  CASES  IN  CHANCERY. 

Story  V.  Jersey  City  and  Bergen  Point  Plank  Road  Co. 

and  its  acceptance  by  the  stockholders,  must  be  deemed  to  have  been  en- 
tered into  by  both  parties,  subject  to  that  reservation. 

4.  Whatever  limitation  may  exist  to  the  reserved  right  of  tlie  legislature 
to  alter  or  repeal  a  contract,  such  reservation  is  in  itself  valid,  and  this 
court  ought  not,  upon  a  motion  for  a  preliiuiuary  injunction,  to  pronounce 
any  alteration,  suspension  or  repeal  of  the  charier,  to  be  unconstitutional 
or  illegal.  Much  less  should  this  court  make  such  declaration  in  advance 
of  any  actual  legislation. 

Under  the  provisions  of  the  charter  of  incorporation  of  the  Jersey  City 
and  Bergen  Point  Plank  Road  Company,  Pumph.  Laws  1850,2^.  255,  and 
the  supplement  thereto,  Laws,  1851,  p.  288,  and  18G0,  p.  392,  and  of  the 
charter  of  incorporation  of  the  Jersey  City  and  Bergen  Railroad  Company, 
Laws,  1859,  p.  411,  and  the  supplement  thereto,  Laws,,lS60,  p.  393 — 

Jleld,  that  the  occupation  of  a  part  of  the  ancient  highway  on  which 
the  plank  road  is  constructed,  by  the  railway,  with  the  consent  of  the  plank 
road  company,  without  the  personal  consent  of  a  stockholder,  the  plank 
road  company  having  been  authorized  by  the  legislature  to  lay  rails  upon 
their  road,  is  no  violation  of  the  rights  of  such  stockholder. 

Held  also,  that  the  sale  by  the  plank  road  company  of  the  whole  or  a  part 
of  their  road  to  the  railroad  company,  without  the  personal  consent  of  a 
stockholder,  is  not  such  an  infringement  (if  any)  of  his  rights  as  this  court 
will  inter.*ereto  restrain  by  injunction. 

Held  further,  that  a  change  of  the  route  of  the  plank  road  by  authority 
of  the  legislature,  at  the  instance  of  the  plank  road  company,  is  not  a  fun- 
damental change  of  the  objects  of  the  company,  or  a  fundan^ental  alteration 
of  the  structure  thereof,  which  equity  will  restrain  at  the  instance  of  a 
stockholder. 

The  bill  in  this  cause  was  filed  by  Riifiis  Story,  a  stock- 
holder in  the  Jeisey  City  and  Bergen  Point  Plank  Road  Com- 
pany, for  an  injunction  to  restrain  the  coniniission  of  acts  by 
the  company,  charged  to  be  prejudicial  to  the  interest  of  the 
complainant  as  a  stockholder  in  said  company.  The  company 
was  incorporated  on  the  8th  of  March,  1840,  and  was  .au- 
thorized to  construct  a  plank  road  of  a  specified  description, 
from  Grand  street,  in  Jersey  City,  uj)oii  the  main  road  or 
highway,  to  Bergen  Point.  The  charter  was  accepted,  the 
stock  subscribed  (the  complainant  becoming  a  stockholder), 
the  company  organized,  and  the  road  constructed  pursuant 
to  the  requirements  of  the  charter  and  of  a  supplement 
thereto,  approved  on  the  14th  of  March,  1851.  The  high- 
way over  which  the  plank  road  was  thus  constructed,  for  the 


FEBRUARY  TERM,  1863.  15 

Story  V.  Jersey  City  and  Bergen  Point  Plank  Road  Co. 

distance  of  about  two  miles  from  the  Kill  Van  Kull  to  a 
turn  in  the  road  to  the  west,  a  few  hundred  feet  north  of 
where  the  Reformed  Dutch  Cliurch  of  Bergen  Neck  now 
stands,  is  part  of  an  ancient  highway,  laid  out  and  opened 
three  rods  wide,  in  the  year  1786. 

The  Jersey  City  and  Bergen  Railroad  Company  were  in- 
corporated by  an  act  approved  on  the  15th  of  March,  1859, 
with  power  to  construct  a  railroad  from  some  point  ou  the 
Kill  Van  Kull,  at  or  near  Bergen  Point,  to  the  Newark 
turnpike  road,  with  one  or  more  branches  to  the  ferries  in 
Hudson  county,  south  of  Hoboken.  They  were  authorized 
to  purchase  any  plank  road  or  roads  within  the  limits  defined 
by  their  charter.  They  were  prohibited  by  their  charter 
from  using  any  other  than  horse  power  in  running  their 
cars,  and  from  constructing  their  road  within  fifty  feet  of  any 
j)lank  road,  without  the  consent  of  such  plank  road  company, 
except  to  cross  the  same. 

By  a  supi)lement  to  the  charter  of  the  plank  road  company, 
approved  on  the  17th  of  March,  1860,  they  were  authorized 
to  lay  iron  rails  and  run  cars  upon  their  road,  with  the  pro- 
viso, among  others,  that  said  rails  should  be  so  laid  as  not  to 
binder  or  obstruct  the  public  travel  on  said  road,  and  also 
to  straighten  or  widen  their  road  or  any  part  thereof,  at  their 
pleasure,  on  first  obtaining  the  written  consent  of  the  owners 
of  the  land  taken  for  such  straightening  and  widening.  The 
complainant  never  personally  assented  to  the  last  mentioned 
act,  or  to  the  act  incorporating  the  railroad  company. 

By  virtue  of  the  last  mentioned  act,  the  promoters  of  the 
railway,  who  had  a  majority  of  the  stock  of  the  ])lank  road 
company,  and  the  said  plank  road  company  claim  to  have  a 
right  to  lay  said  railway  or  to  allow  the  railroad  company 
80  to  do,  upon  that  part  of  the  plank  road  extending  about 
two  miles  northward  from  the  Kill  Van  Kull,  and  have  en- 
tered into  negotiations  and  made  arrangements  for  that  pur- 
pose, and  have  advertised  that  application  will  be  made  to 
the  legislature,  at  its  next  session,  for  power  to  alter  the 
route  of  the  plank  road  and  to  straighten  the  same.    The  pro- 


16  CASES  IN  CHANCERY. 

Story  V.  Jersey  City  and  Bergen  Point  Plank  Road  Co. 

meters  of  the  railway  also  threaten  and  intend  that  the 
plank  road  company  shall  give  its  consent  to  the  occupation 
of  their  road  for  a  railway,  or  make  sale  of  the  plank  road  or 
some  part  thereof  for  that  purpose. 

The  bill  charges  that,  if  the  intentions  of  the  two  com- 
panies and  of  the  persons  owning  the  majority  of  the  stock 
of  the  plank  road  company,  but  interested  in  the  said  railway, 
are  carried  out,  the  object  for  which  the  plank  road  company 
was  created,  will,  without  the  complainant's  consent,  be 
abandoned,  the  route  of  the  road  altered,  and  a  new  route 
established.  That  the  complainant's  funds  and  the  funds  of 
said  corporation  will  not  be  devoted  to  the  olyects  of  said  cor- 
poration, but  to  other  and  different  pur[)Oses ;  the  objects 
and  structure  of  the  company  will  be  fundamentally  altered  ; 
the  franchises  of  the  company  disposed  of  and  impaired  ;  and 
thus  the  contracts  between  the  complainant  and  the  plank 
road  company  and  the  stockholders  thereof,  and  the  trusts 
with  which  said  plank  road  company  is  charged,  would  be 
violated.  That  if  the  legislature  shall  pass  such  act  as  is  ad- 
vertised and  intended  to  be  applied  for,  without  the  com- 
plainant's consent,  it  would  impair  the  franchise  granted  to 
the  plank  road  company  and  to  the  complainant  as  co-stock- 
holder thereof,  and  would  authorize  an  abandonment  of  a 
part  of  the  route  of  the  road.  That  the  capital  stock  and 
franchises  of  the  company  will,  by  the  state,  be  diverted 
from  the  objects  of  said  incorporation,  and  the  objects  and 
structure  of  the  company  fundamentally  altered,  and  thereby 
the  obligation  of  the  contract  between  the  complainant  and 
the  state,  as  well  as  of  the  contracts  between  the  complainant 
and  the  company  and  the  other  stockholders  thereof,  be  im- 
paired. That  the  conditions  upon  which  the  grant  of  power 
to  lay  the  railway  upon  the  j)lauk  road  was  made  cannot  be 
complied  with,  inasmuch  as  the  construction  and  use  of  said 
railway  upon  the  plank  road,  will  necessarily  hinder  and  ob- 
struct the  travel  thereon. 

The  prayer  of  the  bill  is — 

1.  That  the  plank  road  company  may  be  perpetually  re- 


FEBRUARY  TERM,  1863.  17 

Story  V.  Jersey  City  and  Bergen  Point  Plank  Road  Co. 

strained  from  consenting  to  the  occupation,  by  the  railway, 
of  any  part  of  the  plank  road  ;  and  the  railroad  company 
from  accepting  such  consent,  without  the  consent  of  the  com- 
plainant and  the  other  stockholders  of  the  plank  road  com- 
pany, on  whose  behalf  the  bill  is  filed. 

2.  That  the  plank  road  company  may  be  perpetually  en- 
joined from  selling  any  part  of  their  road  to  the  railroad 
company;  and  the  railroad  company  from  making  such  pur- 
chase, without  the  like  consent. 

3.  That  the  plank  road  company  may  be  perpetually  en- 
joined from  making  any  application  to  the  legislature  for 
authority  to  abandon  any  part  of  said  plank  road,  or  to  change 
fundamentally  the  ol)jects  of  said  company,  or  to  alter  fun- 
damentally the  structure  of  said  road,  without  the  like  con- 
sent ;  and  the  railroad  company,  its  officers,  stockholders 
and  promoters,  from  aiding  and  abetting  such  application. 

4.  That  the  railroad  company  may  be  perpetually  enjoined 
from  building  a  railway  on  said  part  of  said  plank  road,  and 
from  making  any  excavation  therein,  or  doing  any  act  there 
for  that  purpose. 

The  cause  was  heard  on  application  for  an  injunction  pur- 
suant to  the  prayer  of  the  bill,  upon  the  bill,  answer  and 
affidavits. 

Gilchrist,  for  complainant. 

Zabrlskie,  for  defendants. 

The  Chancellor.  Most  of  the  points  discussed  by  coun- 
sel upon  the  hearing,  and  upon  which  the  decision  of  the 
present  application  in  any  degree  rests,  are  free  from  serious 
doubt  or  difficulty.  At  the  present  stage  of  the  cause  they 
will  be  disposed  of  without  further  discussion,  by  stating 
briefly  the  grounds  of  the  decision. 

I  am  of  opinion — 

1.  That  the  occupation  of  a  part  of  the  ancient  highway 
on  which  the  plank  road  is  constructed,  by  the  railway,  with 
the  consent  of  the  plank  road  company,  without  the  personal 


18  CASES  IN  CHANCERY. 

Story  V.  Jersey  City  and  Bergen  Point  Plank  Road  Cc. 

consent  of  the  complainant,  the  plank  road  company  having 
been  anthorized  by  the  legislature  to  lay  rails  ujx)n  their 
road,  is  no  violation  of  the  rights  of  the  complainant,  as  a 
stockholder  of  said  company. 

2.  That  the  sale  by  the  plank  road  company  of  the  whole 
or  a  part  of  their  road  to  the  railroad  company,  without  the 
personal  consent  of  the  complainant,  is  not  such  an  infringe- 
ment (if  any)  of  the  complainant's  rights  as  a  stockholder,  as 
this  court  will  interfere  to  restrain  by  injunction. 

3.  That  a  change  of  the  route  of  the  plank  road  by  author- 
ity of  the  legislature,  at  the  instance  of  the  plank  road  com- 
pany, is  not  a  fundamental  change  of  the  objects  of  the  com- 
.pany,  nor  a  fundamental  alteration  of  the  structure  thereof, 
which  equity  will  restrain  at  the  instance  of  a  stockholder. 

This  disposes  of  the  motion,  so  far  as  an  injunction  is  asked 
to  protect  the  property  of  the  complainant  or  his  rights,  from 
any  violation  by  the  acts  of  the  defendants  under  existing 
laws. 

But  the  court  is  further  asked,  that  the  plank  road  com- 
pany may  be  perpetually  restrained  from  making  any  appli- 
cation to  the  legislature  for  authority  to  abandon  any  part  of 
their  plank  road,  or  to  alter  fundamentally  the  structure  of 
the  said  company  ;  and  that  the  said  company,  its  officers  and 
promoters,  may  be  perpetually  enjoined  from  aiding  and  abet- 
ting such  application. 

This,  it  is  believed,  is  the  first  instance  in  this  country,  of 
an  application  to  a  court  of  equity  to  restrain,  by  writ  of  in- 
junction, an  application  to  the  legislature  for  any  purpose, 
either  of  public  or  private  concern.  It  is  admitted  that  there 
is  no  American  precedent  for  the  exercise  of  such  power. 
This  fact  in  itself,  though  not  decisive,  is  a  persuasive  argu- 
ment against  the  propriety  of  its  exercise.  In  England, 
though  applications  to  parliament  have  been  restrained  by 
injunction,  the  practice  is  of  very  recent  origin,  and  there 
are  but  few  reported  cases  of  its  exercise.  It  was  adopted  by 
Vice  Chancellor  Shadwell,  in  1831,  in  Cunliff  v.  The  3Inn- 
Chester    and   Bolton   Canal  Company,  and   in  Ware  v.    The 


FEBRUARY  TERM,  1863.  19 

Story  V.  Jersey  City  and  Bergen  Point  Plank  Road  Co, 

Grand  Junction  Water  Worhs  Company,  2  Ra^^s.  &  M.  470, 
and  note.  The  former  case  was  compromised  witliout  ai)peal ; 
the  latter  was  reversed  on  appeal  by  the  Lord  Chancellor. 

In  The  Stockton  and  Hartlepool  Railway  Company  v.  The 
Leeds  and  Thirsk  and  The  Clarence  Railway  Companies,  2 
Phillips  Q(iQ,  (1848),  an  injunction  was  granted  by  Vice 
Chancellor  Shad  well  to  restrain  a  railroad  company  from  op- 
posing a  bill  brought  before  parliament  by  another  railroad 
com[)any  for  the  amalgamation  of  the  two  companies.  On 
appeal  the  injunction  was  dissolved  upon  the  merits,  though 
the  jurisdiction  of  the  court  was  maintained  by  Lord  Cot- 
tenham. 

In  Heathcote  v.  The  North  Staffordshire  Railioay  Com- 
pany, 2  Macnaghten  and  Gor.  100,  (1850),  an  injunction  was 
granted  by  the  Vice  Chancellor,  restraining  the  defendants 
from  making  application  to  parliament  for  any  act  to  author- 
ize them  to  abandon  certain  branch  railways,  or  to  authorize 
anything  to  be  done  or  omitted  by  the  company,  inconsistent 
with,  or  repugnant  to,  a  covenant  entered  into  by  them  with 
the  complainant.  This  injunction  was  also  dissolved  by  Lord 
Cottenham  upon  the  merits.  In  no  one  of  these  cases  was  the 
injunction  restraining  a  party  from  making  application  to 
parliament,  either  in  support  of  or  in  opposition  to  a  bill, 
finally  sustained. 

There  are  a  number  of  cases  in  which  the  court  have  en- 
joined a  corporation  having  funds  for  distinct  objects,  from 
using  them  to  promote  an  application  to  parliament  for  a 
fundamental  change  in  their  charter.  But  this,  it  is  obvious, 
is  an  exercise  of  power  resting  on  very  different  princi{)les. 
It  is  simply  a  restraint  Upon  the  corj)oration  of  a  diversion 
of  its  funds  from  the  purposes  for  which  they  are  held  in  trust 
to  other  and  different  purposes.  The  Attorney  General  v. 
The  Corp.  of  Norwich,  16  Simons  225;  3Iunt  v.  The  Shrcv^s- 
bury  and  Chester  Railway  Co.,  13  Beav.  1  ;  Stevens  v.  The 
South  Devon  Railway  Co.,  Ibid.  48;  llie  Great  West.  Rail- 
way Co.  V.  Rushout,  5  JJe  Gex  and  Small  21)0,  (10  Eur/.  Law 
and  Eq.  72) ;  Simpson  v.  Denison,  10  Hare  51,  (IG  Jur,  828). 


.  20  CASES  IN  CHANCERY. 

Story  V.  Jersey  City  and  Ber°;en  Point  Plank  Road  Co. 

The  rule  seems  to  be  well  settled  in  England,  that  a  court 
of  equity  will  not,  either  at  the  ijistance  of  a  stockholder  or 
of  a  thiid  party,  restrain  a  corporation  from  applying  to  par- 
liament for  an  alteration  of  its  charter. 

As  has  already  been  intimated,  the  jurisdiction  of  the 
Court  of  Chancery  to  restrain  a  party  from  petitioning  par- 
liament for  or  against  a  measure,  has  been  rej)eatcdly  atlirmed 
by  the  English  Chancellors.  Thus,  in  The  Stockton  and 
Hartlepool  Railway  Company  v.  The  Leeds  and  Thirsk  and 
The  Clarence  Railway  Companies,  Lord  Cottenham  said  : 
"  There  is  no  question  whatever  about  the  jurisdiction  ;  a 
party  who  comes  to  oppose  a  railway  bill  in  parliament,  does 
so  solely  in  respect  of  his  private  interest,  not  as  represent- 
ing any  interest  of  the  public,  or  for  the  purpose  of  com- 
municating any  information  to  parliament.  This  court, 
therefore,  if  it  sees  a  proper  case  connected  with  private  pro- 
perty or  interest,  has  just  the  same  jurisdiction  to  restrain  a 
party  from  petitioning  against  a  bill  in  parliament  as  if  he 
were  bringing  an  action  at  law,  or  asserting  any  other  right 
connected  with  the  enjoyment  of  the  property  or  interest 
which  he  claims."  And  in  the  earlier  case  of  Ware  v.  The 
Grand  Junction  Water  Works  Company,  Lord  Chancellor 
Brougham  said  :  "  It  is  quite  idle  to  represent  this  as  an 
attempt  to  restrain  by  injunction  the  proceedings  of  parlia- 
ment." 

It  will  be  freely  admitted  that  the  injunction  operates 
directly,  not  upon  the  legislature  but  upon  the  party  enjoined, 
and  in  no  wise  interferes  with  the  exercise  by  the  legislature 
of  its  rightful  powers.  But  I  cannot  resist  the  conviction 
that  such  exercise  of  power,  under  our  form  of  government, 
is  an  infringement  of  the  rights  of  the  j)eople  and  of  their 
representatives.  If  not  a  direct  infraction  of  the  bill  of  rights 
and  of  the  letter  of  the  constitution,  it  is  in  conflict  with  the 
spirit  of  republican  government  and  the  structure  of  its  in- 
stitutions. Every  citizen  has  an  unquestioned  right  to  peti- 
tion either  branch  of  the  legislature  upon  any  subject  of 
legislation  in  which  he  is  interested.     Every  legislator  has  a 


FEBRUARY  TERM,  1863.  21 

Story  V.  Jersey  City  and  Bergen  Point  Plank  Koad  Co. 

right  to  be  informed  of  the  views  and  wishes  of  all  parties 
interested  in  the  enactment  of  a  law.  This  right  to  perfect 
freedom  of  interconrse  between  the  representative  and  his 
constituents  is  not  founded  upon  any  constitutional  provision 
or  bill  of  rights,  but  springs  from  the  very  structure  of  the 
government.  By  what  authority  shall  this  court  step  between 
the  representative  and  his  constituents,  and  deny  to  the  one 
or  the  other  the  exercise  of  his  political  rights  in  their  fullest 
freedom  ?  It  is  conceded  that  the  legislative  powers  cannot 
be  trammeled  by  injunction.  The  legislature  can  neither  be  re- 
strained from  legislating  upon  any  subject,  nor  from  exercising 
their  authority  to  obtain  information  upon  any  matter  of  legis- 
lation. And  if  the  legislature  cannot  be  restrained  from  asking 
the  information,  can  the  citizen  be  restrained  from  giving  it? 
Are  the  rights  of  the  representative  more  sacred  than  those 
of  his  constituents  ?  It  appears  to  me  that  the  granting  of 
such  injunction  is  an  unauthorized  abridgment  of  the  political 
rights  of  the  party  enjoined.  The  proper  office  of  courts  of 
justice  is  to  maintain  and  enforce  the  legal  and  equitable 
rights  of  parties  litigant,  as  established  by  existing  law.  It 
is  no  part  of  their  office  to  determine  in  advance  what  laws 
ought  or  ought  not  to  be  enacted,  or  to  interfere,  directly  or 
indirectly,  with  the  course  of  legislation. 

The  complainant's  bill  is  framed  u{)on  the  theory  that  the 
charter  of  an  incorporated  company  cannot  be  altered  in  any 
essential  particular,  even  with  the  consent  of  the  corporation, 
without  the  consent,  express  or  implied,  of  every  stockholder; 
and  that  such  alteration  would  be  unconstitutional,  as  impair- 
ing the  obligation  of  the  contract  entered  into  between  the 
state  and  such  stockholder.  If  this  doctrine  should  be  ad- 
mitted in  its  fullest  extent,  it  is  not  perceived  that  it  can 
affect  the  result  of  the  present  application. 

AVhen  the  charter  of  the  Jersey  City  and  Bergen  Point 
Plank  Road  Company,  of  which  the  complainant  claims  to  be 
a  stockholder,  was  granted,  it  was  provided  by  a  general 
law  of  the  state  that  the  charter  of  every  corporation  granted 
by  the  legislature  should   be  subject  to  alteration,  suspension 


22  CASES  IN  CHANCERY. 

Story  V.  Jersey  City  and  Bergen  Point  Plank  Koad  Co. 

and  repeal,  in  the  discretion  of  the  legislature.  The  legisla- 
ture, therefore,  in  granting  the  charter  to  the  i)lauk  road 
company,  must  be  deemed  to  have  reserved  to  themselves 
the  right  of  altering,  suspending,  or  repealing  the  charter, 
whenever,  in  their  discretion,  the  public  good  miglit  require 
it,  as  fully  as  if  the  reservation  were  inserted  in  the  charter. 
And  all  the  contracts,  express  or  implied,  resulting  from  the 
act  of  incorporation  and  its  acceptance  by  the  stockholders, 
must  be  deemed  to  have  been  entered  into  by  both  parties, 
subject  to  that  reservation.  Whatever  limitation  may  exist 
to  the  reserved  right  of  the  legislature  to  alter  or  repeal  the 
contract,  I  am  clear  that  the  reservation  is  in  itself  valid, 
and  that  this  court  ought  not,  upon  a  motion  for  a  prelimi- 
nary injunction,  to  pronounce  any  alteration,  suspension,  or 
repeal  of  the  charter  to  be  unconstitutional  or  illegal.  Much 
less  should  this  court  make  such  declaratiou  in  advance  of 
any  actual  legislation. 

The  plank  road  company  were  incorporated  with  power  to 
construct  a  plank  road  upon  an  ancient  public  highway  and 
with  the  franchise  of  taking  tolls  thereon.  No  limit  is  fixed 
for  the  duration  of  the  charter.  The  legislature  have  since 
incorporated  a  company  to  construct  a  horse  railroad  between 
the  same  termini.  They  have  authorized  the  railroad  com- 
pany to  purchase  the  plank  road.  They  have  also  authorized 
the  plank  road  company  to  lay  rails  upon  their  track.  They 
have,  however,  provided  that  if  the  plank  road  is  purchased 
by  the  railroad  company,  the  plank  road  shall  be  continued  ; 
and  if  the  rails  are  laid  thereon  by  the  plank  road  company, 
they  shall  be  so  laid  as  not  to  hinder  or  obstruct  public 
travel.  It  must  be  presumed  that  the  public  convenience  de- 
manded the  increased  facility  to  be  aflPorded  by  the  construc- 
tion of  the  railroad.  Of  that  the  legislature  were  the  peculiar 
exclusive  judges. 

•  The  complainant,  a  stockholder  in  the  plank  road  company, 
now  asks  that  the  company  shall  be  restrained  from  making 
any  application  to  the  legislature  to  abandon  or  change  any 
part  of  their  route,  for  this,  it  is  insisted,  would  be  fundamen- 


FEBRUARY  TERM,  1863.  23 

Burlew  v.  Hillman. 

tally  changing  the  objects  of  the  company  without  his  cou- 
eent ;  and  that  the  railroad  company,  its  officers,  stockholders 
and  promoters,  shall  bo  enjoined  from  aiding  and  abetting 
such  application.  If  this  claim  have  any  foundation  in  law 
or  in  equity,  which  is  by  no  means  admitted,  and  if  it  be 
recognized,  it  would  place  it  in  the  power  of  a  single  stock- 
holder, for  his  own  pecuniary  interest,  against  the  wish  of 
every  other  stockholder  and  the  convenience  of  the  whole 
community  interested  in  the  line  of  travel,  to  prevent  even 
a  petition  for  a  change. 

The  injunction  is  denied  without  costs. 

Cited  in  State  v.  Comm'r  of  B.  R.  Tdxation,  8  Vr.  237. 


Phebe  Ann  Buelew  vs.  John  F.  Hillman,  and  others. 

1.  It  is  no  defence  to  a  suit  brought  by  a  wife  after  the  deatli  of  lier 
husband,  to  foreclose  a  mortgage  made  to  her  jointly  witli  her  husband  for 
the  benefit  of  the  wife,  that  the  bond  was  given  to  the  husband  alone,  and 
to  his  heirs.  She  is  the  surviving  mortgagee,  and  has  a  clear  right  to  en- 
force her  remedy  under  the  mortgage. 

2.  A  party  beneficially  interested  in  a  contract  may  maintain  a  suit  in 
equity  in  his  own  name  to  enforce  such  rights,  tlioiigh  he  be  not  a  party  to 
the  instrument  creating  tliein. 

3.  Where  there  are  several  parties  in  interest,  and  tlie  mortgagor  is  in 
doubt  as  to  the  rights  of  tiie  complainant  under  a  bill  to  foreclose,  lie  is 
entitled  to  have  tlie  question  judicially  determined  for  his  own  security, 
but  not  at  the  cost  of  the  mortgagee. 

4.  The  general  rule  is  that  the  mortgagee  is  entitled  to  costs,  both  on 
bills  to  redeem  and  to  foreclose. 


Bedle,  for  complainant. 

Schenck,  for  defendant. 

The  Chancellor,  The  bill  is  filed  to  foreclose  a  mort- 
gage, given  by  John  F.  Hillman  and  wife  to  Phebe  Ann 
Burlew  and  Richard  Burlaw,  to  secure  the  payment  of  the 


24  CASES  IN  CHANCERY. 


Biirlew  V.  Hillman. 


sum  of  one  thousand  dollars,  with  interest,  agreeably  to  the 
condition  of  an  obligation  of  even  date,  given  by  Hillman  to 
Richard  Burlew,  liis  heirs  and  assigns.  The  condition  of  the 
bond  is,  that  the  obligor  shall  [)ay  to  the  said  Piiebe  Ann 
Burlew,  during  her  natural  life,  annually,  on  the  first  day  of 
April,  the  interest  of  one  thousand  dollars,  and  such  further 
sum  of  the  principal,  not  exceeding  twenty-five  dollars,  as 
may  be  necessary  for  her  support  and  maintenance;  and  if 
the  said  Richard  shall  survive  tiie  said  Pliebe  Ann,  the  obligor 
shall  pay  him  the  interest  during  his  natural  life,  and  on  the 
decease  of  the  said  Richard  and  Phebe  Ann,  shall  pay  the 
j)rincipal  sum  of  one  thousand  dollars,  or  so  much  thereof  as 
remains  unpaid,  to  the  heirs  of  the  said  Richard  and  Piiebe 
Ann  Burlew.  If  there  be  a  default  in  the  payment  of  inter- 
est, and  the  same  remain  unpaid  for  six  months  after  becom- 
ing due,  the  whole  sum  to  become  due  and  payable  on  demand, 
and  the  said  sum  reinvested  as  above  specified,  by  consent  of 
the  parties  interested. 

The  bill  prays  that  the  complainant  may  receive  the  arrears 
of  interest,  with  twenty-five  dollars  per  annum  for  her  sup- 
port and  maintenance,  and  that  the  balance  of  principal  re- 
maining unpaid  may  be  decreed  to  be  paid  and  reinvested 
for  the  purj)oses  of  the  trust. 

The  mortgagees,  Richard  Burlew  and  Phebe  Ann  Burlew, 
were  husband  and  wife.  Articles  of  separation  were  entered 
into  between  them,  cotemporaneously  with  the  date  of  the 
bond  and  mortgage,  which  were  given,  as  appears  by  the 
recital  of  the  mortgage,  for  the  purpose  of  carrying  the  pro- 
visions of  the  articles  into  effect.  The  husband  died  in  No- 
vember, 18G0.  The  parties  continued  to  live  separate  during 
the  life  of  the  husband  ;  the  wife  receiving,  for  several  years, 
the  interest  and  twenty-five  dollars  of  the  principal,  annually. 
Both  principal  and  interest  were  in  arrear  at  the  time  of 
filing  the  bill,  on  the  twelfth  of  June,  1861. 

The  question,  how  far  a  court  of  equity  will  interfere  to 
enforce  the  provisions  of  a  voluntary  separation  between 
husband  and   wife,  is  not  raised,  nor  is  the  validity  of  the 


FEBRUARY  TERM,  1863.  25 

Burlew  v.  liillman. 

deed  of  separation  drawn  in  question.  The  parties,  it  is 
admitted,  lived  separately  from  the  date  of  the  bond  and 
mortgage,  until  the  death  of  the  husband  ;  the  wife  receiving 
the  sum  of  principal  and  interest  stipulated  to  be  paid  by  the 
husband,  in  lieu  of  her  support  and  maintenance  and  in  full 
discharge  thereof.  Enforcing  compliance  with  the  terms  and 
conditions  of  the  bond  against  the  obligor  at  this  time  can 
affect  no  marital  right  or  obligation,  as  between  the  husband 
and  wife.  As  against  the  defendant,  the  equitable  right  of 
the  wife  is  clear. 

It  is  objected  that  the  suit  cannot  be  maintained  in  the 
uame  of  the  wife,  inasmuch  as  the  bond  was  given  to  the 
husband  alone  and  to  his  heirs.  This  objection  would  be 
fatal  to  an  action  at  law  brought  by  the  wife  upon  the  bond. 
For  the  right  of  action  at  law  is  vested  solely  in  the  ])arty 
having  the  strict  legal  title  and  interest,  in  exclusion  of  the 
equitable  claim.     1  Chittij's  PL  {eel  1837)  2. 

But  the  complainant  is  seeking  to  enforce  not  a  legal,  but 
an  equitable  right.  She  has  the  entire  beneficial  interest  in 
the  bund,  so  far  as  the  objects  of  this  suit  are  involved.  She 
is  moreover  the  surviving  mortgagee ;  the  mortgage  having 
been  executed  to  her  jointly  with  her  husband,  and  she  has 
therefore  a  clear  right  to  enforce  her  remedy  under  the 
mortgage.  Independently  of  this  circumstance,  a  party  bene- 
ficially interested  in  a  contract  may  maintain  a  suit  in  equity 
in  his  own  name  to  enforce  such  rights. 

Equity  recognizes  the  right  of  a  wife  to  a  separate  estate, 
and  will  protect  and  enforce  that  right,  even  as  against  the 
husband,  without  the  interposition  of  trustees.  If  the  hus- 
band is  living,  and  the  legal  right  vested  in  him,  equity  will 
treat  him  as  a  trustee  for  the  wife.  The  trust  in  favor  of 
the  wife  will  attach  uj)on  him,  and  be  enforced  as  if  he  were 
a  mere  stranger.     2  iSYory's  Eq.  Jur.,  §  1378,  1380. 

But  the  husband  being  dead,  the  wife  being  the  surviving 
mortgagee,  and  the  beneficial  interest  exclusively  in  her, 
the  case  is  clear  of  all  difficulty  upon  t?liis  point. 

The  material  question  in   the  cause  is,  whether  the  com- 


26  CASES  IN  CHANCERY. 

Burlew  v.  Hillman. 

plaiiiant  is  entitled  to  recover  more  than  the  arrears  of  inter- 
est due  upon  the  mortgage. 

It  is  insisted  first,  that  no  part  of  the  principal  is  necessary 
f(jr  her  support  and  maintenance,  in  which  event  only,  by 
the  terms  of  the  contract,  it  is  to  be  paid  to  her.  By  the 
terms  of  the  contract  the  comjilainant  is  to  receive,  in  addi- 
tion to  the  interest,  so  much  of  the  principal,  not  exceeding" 
twenty-five  dollars  in  any  one  year,  as  may  be  necessary  for 
her  support  and  maintenance.  It  is  urged  that  as  the  com- 
plainant is  furnished  a  home  by  her  son  and  is  not  incaj)able 
of  labor,  no  part  of  the  principal  is  necessary  for  her  support. 

It  is  difficult  to  determine  what  was  understood  and  intended 
by  the  phrase,  "  necessary  for  her  support  and  maintenance." 
It  would  seem,  that  it  must  have  been  intended  by  the  parties 
that  the  wife  should  contribute  to  her  support  by  her  own 
labor,  for  the  whole  provision  is  not  sufficient  to  furnish  her 
the  bare  necessaries  of  life.  The  lowest  rate  at  which  she 
could  procure  board  in  the  vicinity  where  she  lives,  is 
shown  to  be  two  dollars  per  week,  and  the  cost  of  clothing 
suitable  to  her  station  in  life,  is  shown  to  be  fifty  dollars 
per  annum.  Nor  on  the  other  hand  could  it  have  been  in- 
tended merely  to  keep  the  wife  from  absolute  want.  It  must 
have  been  designed  to  furnish  the  wife  a  comfortable  sub- 
sistence, in  connection  with  the  earnings  of  such  labor  of  her 
own  as  might  be  suitable  to  her  age  and  state  of  health.  In 
this  view  of  the  case,  the  evidence  shows  that  she  is  enti- 
tled to  receive  the  full  extent  of  the  allowance  provided  by 
the  contract.  This  conclusion  is  fully  justified  by  the  fact 
that  twenty-five  dollars  of  tiie  princii)al  was  paid  to  the  wife 
by  the  defendant  while  the  husband  was  alive,  for  three 
years  after  the  execution  of  the  contract.  The  defendant  is 
a  son-in-law  of  Burlew,  was  on  terms  of  familiar  intercourse 
with  him  after  the  separation,  lived  in  the  vicinity  of  the 
parties,  and  must  have  known  the  views  of  the  husband  and 
the  wants  of  the  wife.  No  change  in  the  situation  or  circum- 
stances of  the  wife  is  shown,  rendering;  the  provision  less  ne- 
cessary for  her  support  now,  than  it  was  immediately  after 


FEBRUARY  TERM,  1863.  27 

Burlew  v.  Hillman. 

the  contract  was  made.  The  conduct  of  the  parties  has  gone 
far  to  settle  the  true  interpretation  of  the  contract. 

The  fiict  that  a  son  of  the  complainant  temporarily  contrib- 
utes to  her  support  by  furnisiiing  her  a  home,  cannot  affect 
her  legal  rights  under  the  cotitract. 

It  is  further  urged  that  the  complainant  agreed  to  accept 
interest  on  the  whole  principal  of  the  bond,  sixty  dollars  per 
annum,  in  full  of  her  claim,  acknowledging  that  the  twenty- 
five  dollars  of  principal  was  not  necessary  for  her  support. 
This  agreement  is  not  satisfactorily  proved.  No  considera- 
tion is  pretended  to  have  been  paid  for  it.  The  complainant 
and  her  son,  while  they  admit  that  this  arrangement  was 
proposed,  both  deny  that  any  contract  to  that  effect  was  con- 
summated. Tiie  complainant  is  entitled  to  recover  the  arrears 
of  interest,  with  the  annual  instalments  of  principal  remain- 
ing unj)aid. 

There  is  a  clear  forfeiture  of  the  bond.  No  one  of  the  in- 
stalments of  interest,  except  the  first,  has  been  [)aid  within 
six  months  after  becoming  due.  By  the  terms  of  tiie  contract 
the  whole  ])rincipal  of  the  bond  has  become  due,  and  the 
complainant  is  entitled  to  have  the  same  collected  and  re- 
invested under  the  direction  of  the  court,  or  by  consent  of  the 
parties  interested. 

There  is  no  necessity  of  a  reference  to  a  master.  The 
amount  due  is  a  mere  matter  of  computation.  If  the  parties 
cannot  agree  as  to  the  amount,  the  com])utation  may  be  at 
once  made  and  the  amount  ascertained  by  a  master. 

It  is  obviously  for  the  interest  of  all  parties  that  the  in- 
vestment should  not  be  unnecessarily  changed  ;  and  if  chang- 
ed, that  it  should  be  by  consent  of  those  interested,  and  if 
practicable,  without  the  aid  and  direction  of  the  court. 

The  complainant  is  entitled  to  costs.  If  the  mortgasror 
was  in  doubt  as  to  the  rights  of  the  complainant,  he  was  en- 
titled to  have  the  question  judicially  determined  for  his  own 
security,  but  not  at  the  cost  of  the  mortgagee.  Nor  will  the 
refusal  of  tiie  heirs  of  the  husband  to  siixn  a  written   assent 


28  CASES  IN  CHANCERY. 

Freeman  v.  Scofield. 

to  the  payment  of  the  principal,  affect  the  question.  The 
rights  of  tiie  mortgagee  cannot  be  prejudiced  by  such  refusal. 
The  general  rule  is  that  the  mortgagee  is  entitled  to  costs, 
botli  on  bills  to  redeem  and  to  foreclose.  See  cases  collected 
in  note  to  Cranstoion  v.  Johnston,  1  Hovenden's  Sap.  to  Vesey 
Jr.  267. 

There  is  nothing  in  the  case  to  exempt  the  defendant  from 
the  operation  of  the  general  rule. 


Ppiebe  Freeman  vs-.  James  J.  Scofield  and  others. 

1.  Where  a  mortgage  is  given  or  assigned  for  the  payment  of  a  debt  due 
to  two  or  more  jointly,  on  a  bill  to  foreclose  filed  by  the  surviving  obligee, 
the  executor  of  a  deceased  co-obligee  need  not  necessarily  be  joined  as  a 
complainant. 

2.  When  there  are  conflicting  claims  between  the  parties  In  interest  in 
the  mortgage  debt,  the  surviving  obligee  may  file  the  bill  in  his  own  name, 
and  make  the  executor  of  the  deceased  co-obligee  a  defendant. 

3.  W^hether  the  executor  of  a  deceased  coobligee  should  be  joined  with 
the  surviving  obligee  as  complainant,  or  be  made  a  party  defendant  to  the 
suit,  is  a  question  of  form,  and  should  be  raised  upon  demurrer. 

4.  Objections  to  pleadings  which  involve  no  substantial  interest,  are  not 
allowed  upon  the  final  hearing. 


2\  Little,  for  complainant. 

Chandler,  for  defendants. 

Tpie  Chancellor.  The  bill  is  filed  to  foreclose  a  mort- 
gage given  by  the  defendant  to  Ira  C.  Whitehead,  executor, 
and  by  him  assigned  to  Phebe  Freeman  and  Mary  Ann 
Freeman.  Mary  Aim  Freeman  died  testate  before  the  filing 
of  the  bill.  Phebe  Freeman,  the  surviving  assignee,  filed  the 
bill  in  her  own  name,  claiming  to  be  entitled  to  one  half  of 
the  mortgage  debt  in  her  own  right,  and  to  the  balance  as 
trustee  for  the  estate  of  the  deceased  assignee.     The  defend- 


FEBRUARY  TERM,  1863.  29 

Freeman  v.  Scofield. 

ant,  by  his  answer,  admits  all  the  material  charges  of  the  bill, 
but  insists  that  the  executor  of  the  deceased  assignee  should 
have  been  joined  in  the  bill  as  a  complainant.  The  executor 
is  made  a  defendant  and  a  decree  pro  confesso  is  taken  against 
him. 

The  assignment,  as  stated  in  the  bill,  purports  to  have  been 
made  to  the  assignees  jointly.  They  had  a  joint  interest  iu 
the  mortgage  debt,  and  occupy  the  same  position  as  to  their 
rights  that  they  would  have  done  had  the  boud  and  mortgage 
been  made  to  them  jointly. 

The  rule  is  well  settled  that  when  one  of  two  or  more 
obligees  or  others,  having  a  joint  legal  interest  in  the  contract, 
dies,  the  action  at  law  must  be  brought  in  the  name  of  the 
survivor,  and  the  executor  of  the  deceased  obligee  must  not 
be  joined.  Nor  can  he  sue  separately,  for  the  entire  legal  in- 
terest survives.  The  executor  must  resort  to  a  court  of  equity 
to  obtain  from  the  survivor  the  testator's  share  of  the  sum 
recovered.  1  Chittt/'s  PL  {ed.  1837)  21  ;  Broom  on  Parties, 
8  C;  Andersofi  v.  Martindale,  1  East  497. 

The  survivor  is  entitled  to  the  possession  of  the  joint  securi- 
ties, and  her  receipt  will  be  a  valid  discharge  for  the  debt. 
Nor  will  a  court  of  equity,  where  there  are  several  joint 
securities  in  the  hands  of  the  survivor,  appoint  a  receiver  to 
collect  and  divide  the  joint  fund  in  the  proportions  to  which 
the  parties  are  entitled,  uor  compel  an  apportionment  of  the 
securities  between  them.  Penn  v.  Btdler,  4  Dall.  354  ;  Wal- 
lace v.  Fitzsimmons,  1  Dall.  250. 

And  the  principle  applies  whether  the  beneficial  interest 
of  the  joint  obligees  in  the  fund  be  equal  or  unequal,  and 
even  though  the  entire  beneficial  interest  was  in  the  deceased 
obligee. 

The  legitimate  inference  from  the  statements  of  the  bill, 
which  are  not  denied,  is,  that  the  right  of  possession  and 
legal  ownership  of  the  securities  is  in  the  complainant,  and 
that  the  beneficial  interest  in  one  half  of  the  fund  is  also  in 
her.     She  holds  one  moiety  of  the  fund  in  her  own  right, 

Vol.  I.  B 


30  CASES  IX  CHANCERY. 


and  the  other  moiety  as  trustee  for  tlie  estate  of  the  deceased 
co-obligee. 

It  is  one  entire  debt,  and  must  be  recovered  either  at  law 
or  in  equity  by  one  suit,  and  not  in  separate  portions.  In 
cases  of  joint  claims  or  obligations,  all  persons  having  a  com- 
munity of  interest  in  the  claims  or  liabilities  and  who  may 
be  affected  by  the  decree,  are  to  be  made  parties.  Story^s  Eq. 
P/.,  §159,  §169. 

So  also  both  the  trustees  and  cesttii  que  trust,  as  a  general 
rule,  are  necessary  parties.     Story^s  Eq.  PL,  §  193,  §  207. 

The  object  of  the  rule  is  to  have  all  the  parties  in  interest 
before  the  court,  that  the  decree  may  be  final  and  conclusive 
upon  them,  and  afford  adequate  protection  to  the  party  re- 
quired to  perform  the  decree. 

Ordinarily  all  parties  interested  in  obtaining  a  decree  are 
joined  as  complainants,  but  not  necessarily  so.  The  cestui 
que  trust  may  refuse  to  join,  or  have  some  interest  adverse  to 
the  claim  of  the  complainant.  Jn  the  present  case  the  exec- 
utor might  have  alleged  that  the  testator  was  beneiicialiy 
interested  in  the  securities  to  a  larger  amount  than  is  ad- 
mitted by  the  complainant.  Under  these  or  similar  circum- 
stances, the  surviving  obligee  must  tile  the  bill  in  her  own 
name,  making  the  executor  of  the  deceased  co-obligee  a  de- 
fendant. If  any  such  reason  were  suggested  by  the  bill,  the 
bill  would  be  free  from  exception. 

It  would  perhaps  have  been  more  in  accordance  with  the 
practice  of  the  court,  had  the  survivor  and  the  executor  of  the 
deceased  obligee  united  as  complainants  in  the  suit.  But  it 
is  a  mei'c  question  of  practice,  and  the  course  adopted  affect", 
prejudicially,  no  substantial  interest.  The  necessary  parties 
are  all  before  the  court.  A  valid  decree  may  be  made  which 
will  effectually  protect  the  defendant  and  be  final  and  con- 
clusive upon  all  parties  interested. 

If  there  be  anything  whatever  in  the  objection,  it  is  purely 
a  question  of  form,  and  shouUl  have  been  raised  Uj)on  a  de- 
murrer. Objections  to  pleadings  which  involve  no  substantial 
interest,  are  not  allowed  upon  a  final  hearing. 

The  complainant  is  entitled  to  a  decree. 
Cited  in  Trade  Savings  Bank  v.  Freene,  11  C.  E.  Or.  455. 


FEBRUARY  TERM,  1863.  31 


Johnson  v.  Garrett. 


George  R.  Johnson  and  William  M.  Bodine  vs. 
Charles  S.  Garrett  and  others. 

1.  A  sale  by  anditors  in  attachment  of  several  tracts  of  land,  that  ini;t,}vt 
conveniently  and  reasonably  have  been  sold  separately,  and  where  a  sale 
of  part  would  have  been  sufficient  to  satisfy  the  debts  of  the  plaintiff  and 
the  applying  creditors,  is  a  clear  breach  of  trust,  and  will  be  set  aside  as 
void. 

2.  A  bona  fide  purchaser  of  land,  subject  to  the  lien  of  an  attachment,  is 
entitled  to  relief  against  an  illegal  or  inequitable  sale  by  the  auditors. 

3.  Where  a  judicial  sale  is  set  aside  on  the  ground  of  gross  negligence 
or  abuse  of  trust,  the  officer  making  such  sale,  as  well  as  the  purchaser 
acting  in  collusion  with  him,  will  be  condemned  in  costs.  But  where  there 
is  no  charge  of  actual  fraud  or  collusion,  neither  the  officer  nor  purchaser 
will  be  condemned  in  costs. 


On  final  hearing. 

Ilitgg,  for  complainant  ex  parte. 

The  Chancellor.  The  bill  is  filed  to  set  aside  a  sale  of 
real  estate  made  by  anditors  in  attachment.  The  writ  under 
which  the  land  was  seized  and  sold,  was  issued  at  the  suit  of 
Charles  S.  Garrett  against  Joseph  O.  Johnson,  under  whom 
the  complainants  sul)scquently  a(;qnircd  title.  The  land  con- 
sists of  four  lots  on  jNIarket  street,  in  the  city  of  Camden, 
each  twenty  feet  front  by  one  hundred  and  eight  feet  deep, 
making  one  plot  of  eighty  by  one  hundred  and  eight  feet. 
Each  lot  was  worth  $1000.  They  coidd  conveniently  and 
reasonably  have  been  sold  separately.  The  whole  amount  of 
the  judgment  for  which  they  were  sold  was  less  than  three 
hundred  dollars.  The  four  lots  were  ofFere<l  in  one  entire 
parcel,  and  were  struck  off  to  Garrett,  the  plaintiff  in  attach- 
ment, for  $1015,  more  than  double  the  amount  of  the  judg- 
ment. Even  at  this  price,  two  of  the  lots  would  have  brought 
more  than  sufficient  to  pay  the  judgnient.  There  is  no  rea- 
sonable room  for  doubt  that  any  one  of  the  lots  might  have 


32  CASES  IN  CHANCERY. 

Johnson  v.  Garrett. 

been  sold  for  more  than  enough  to  satisfy  all  the  claims  under 
the  attachment. 

The  sale,  as  made,  was  clearly  a  breach  of  trust  and  a 
violation  of  duty  on  the  part  of  the  auditors.  They  were 
authorized  by  the  statute  to  sell  only  so  much  of  the  land 
as  was  necessary  to  satisfy  the  debts  of  the  plaintiff  and  of 
the  applying  creditors,  in  whose  favor  judgment  was  rendered. 
Nix.  Dig.  41,  §  35. 

In  Sfead^s  Executors  v.  Course,  4  Cranch  403,  the  sale  was 
made  by  a  collector  of  taxes  under  a  statute  of  the  state  of 
Georgia,  conferring  powers  of  sale  upon  the  collector,  sub- 
stantially the  same  in  respect  to  the  real  estate  as  those 
conferred  upon  the  auditors  under  the  attachment  act  of  this 
state.  It  authorized  the  collector,  in  case  of  a  default  in  the 
payment  of  taxes,  to  proceed  against  the  defaulter  by  distress 
and  sale  of  his  goods  and  chattels,  if  any  be  found,  otherwise 
on  the  land  of  such  defaulter  qr  so  much  thereof  as  will  pay 
the  amount  of  taxes,  tcith  costs.  Chief  Justice  Marshall,  in 
delivering  the  opinion  of  the  court  setting  aside  the  sale, 
said :  "  If  a  whole  tract  of  land  was  sold,  when  a  small  part 
of  it  would  have  been  sufficient  for  the  taxes,  the  collector 
unquestionably  exceeded  his  authority." 

In  Tiernan  v.  Wilson,  6  Johns.  Ch.  JR.  414,  Cliancellor 
Kent  said  :  "The  proposition  is  not  to  be  disputed,  that  a 
sheriff  ought  not  to  sell  at  one  time,  more  of  the  defendant's 
property  than  a  sound  judgment  would  dictate  to  be  sufficient 
to  satisfy  the  demand,  provided  the  part  selected  can  be  con- 
veniently and  reasonably  detached  from  the  residue  of  the 
property  and  sold  separately.  The  justice  of  this  rule  ia 
self-evident."  And  after  citing  with  apj)robation  the  case  of 
Stead's  Executois  v.  Course,  already  referred  to,  and  advert- 
ing to  the  fact  that  the  sale  in  that  case  was  made  under 
the  ex2>ress  provisions  of  a  statute,  the  Chancellor  adds : 
"The  rule  must  be  the  same  without  any  positive  law  for 
the  purpose.  It  rests  on  principles  of  obvious  policy  and 
universal  justice." 


FEBRUARY  TERM,  1863.  33 

Johnson  v.  Garrett. 

The  same  principle  is  sanctioned  in  Woods  v.  Monell,  1 
Johns.  Ch.  R.  506,  and  in  the  cases  tiiere  cited. 

Doubtless  a  discretion  is  vested  by  law  in  the  officer  charged 
with  the  sale  of  real  estate,  either  by  authority  of  a  statute 
or  under  the  direction  of  a  judicial  tribunal,  touching  the 
quantity  of  land  necessary  to  be  sold,  and  whether  the  sale 
shall  be  in  bulk  or  in  parcels.  And  where  this  discretion 
has  been  exercised  by  the  officer,  courts  are  reluctant  to 
interfere  with  his  action,  except  in  a  clear  case  of  excess  of 
authority,  or  prejudice  to  the  rights  of  the  {)arties  interested. 
The  objection  lies  not  against  the  exercise,  but  the  abuse  of 
the  discretion. 

The  complainants  appear  to  me  to  stand  upon  high  ground 
and  to  have  strong  claims  to  equitable  relief.  They  are  the 
real  owners  of  the  land.  They  purchased  and  paid  for  it  in 
good  faith,  believing  it  to  be  unencumbered,  and  having  no 
knowledge  or  suspicion  of  the  existence  of  the  attachment. 
The  defendant  in  attachment  had  no  interest  in  the  land,  and, 
so  far  33  appears,  no  substantial  motive  to  protect  the  interests 
of  his  alienees.  The  complainants  are  stripped  of  their  title 
by  virtue  of  legal  proceedings  against  a  third  party,  without 
any  wilful  default  or  neglect  upon  their  part.  They  had  no 
knowledge  of  the  existence  of  the  claim  against  the  property, 
and  consequently  no  opportunity  of  satisfying  it.  They  had 
no  notice  of  the  proceedings  to  effect  a  sale,  and  no  opportunity 
of  protecting  tiieir  rights.  In  cases  of  ordinary  sales  under 
judicial  process,  some  one  is  usually  present,  either  on  behalf 
of  the  plaintiff  or  the  defendant,  interested  in  seeing  that 
the  property  is  sold  fairly  and  for  something  like  its  market 
price.  But  under  sales  by  auditors  in  attachment,  where 
the  claim  is  small  and  the  property  levied  upon  is  valuable, 
there  is  no  such  protection.  The  sale  is  often  made,  as  was 
the  fact  in  the  case  now  under  consideration,  where  no  one 
is  present  or  has  an  opportunif^y  of  being  present,  who  is  in- 
terested in  enhancing  the  value  of  the  property  or  protecting 
the  rights  of  the  real  owners.  Under  such  circumstances  it 
is  peculiarly  important  that  all  excess  of  authority  and  all 


84  CASES  IN  CHANCERY. 

Jolinson  V.  Garrett. 

abuse  of  discretion  on  the  part  of  the  auditors  should  be 
sedulously  guarded  against. 

There  is  no  defence  to  the  charges  of  the  bill.  No  answer 
has  been  filed,  either  l)y  the  auditors  or  by  the  purchaser. 
The  bill  is  taken  as  confessed.  All  the  inatei'ial  facts  are 
clearly  established  in  evidence.  I  entertain  no  doubt  as  to 
the  right  or  the  duty  of  the  court  to  interfere  for  the  protec- 
tion of  the  complainants. 

In  Tlernan  v.  Wilson,  6  Johns.  Ch.  B.  411,  where  a  sale 
was  made  under  circumstances  not  dissimilar  in  several  of  its 
features  from  the  sale  now  in  question,  the  court  set  aside 
the  sale  and  ordered  the  jmrchaser  who  had  received  his 
deed,  to  deliver  it  uj)  to  be  cancelUil,  although  he  was  a 
stranger  to  the  proceeding,  and  as  against  him  there  was  no 
charge  of  fraud.  Tlie  sheriff  also,  on  the  ground  of  gross 
negligence  and  abuse  of  trust  on  his  part,  was  condemned  in 
the  costs  occasioned  by  his  defending  the  suit,  although  there 
was  no  charge  of  actual  corruption  against  him. 

There  is  no  charge  in  the  bill,  or  intin)ation  in  the  evidence, 
of  any  collusion  between  the  auditors  and  the  plaintiff  in  at- 
tachment who  becan)e  the  purchaser  at  the  sale  ;  and  although 
the  conduct  of  the  purchaser  since  the  sale,  in  refusing,  upon 
a  tender  of  full  satisfaction,  to  release  a  claim  most  inequita- 
ble as  against  the  complainants,  appears  to  have  been  unrea- 
sonable antl  oppressive,  I  find  no  ground  upon  which  either 
of  the  defendants  can  be  condemned  in  costs. 

I  shall  accordingly  decree  that  the  sale  be  set  aside  as 
void,  but  without  costs,  with  liberty  to  the  complainants,  in 
case  the  plaintiff  or  other  creditors  in  attachment,  upon  being 
paid  or  tendered  the  amount  due,  refuse  to  acknowledge 
satisfaction  of  their  claims,  to  ap[>ly  to  this  court  for  a  per- 
petual injunction  or  such  other  relief  as  they  may  be  advised. 


FEBRUARY  TERM,  1863.  35 


Keener  v.  Atwood. 


John  Keeney  vs.  George  Atwood  aud  others. 

By  the  act  of  1854,  Nix.  Dig.  851,  §  G4,  when  the  mortgagee  resides  in  a 
different  township  from  that  in  which  the  mortgaged  premises  lie,  the  tax 
on  the  money  secured  by  the  mortgage  is  to  be  assessed  against  and  paid 
by  the  mortgagor  in  the  township  where  the  lands  lie,  and  the  receipt  of 
the  collector  therefor  is  made  a  legal  payment  for  so  much  of  the  intei-est 
of  the  mortgage,  and  is  to  be  allowed  and  deducted  thei'efrora  by  the  mort- 
gagee.    Ildd — 

1.  The  payment  of  the  tax  and  the  receipt  of  the  collector  is  a  legal 
payment  of  so  much  interest,  not  of  principal ;  a  payment  of  the  accrued 
and  accruing  interest,  not  of  interest  to  grow  due  at  some  fiiture  time. 

2.  When  a  mortgagor,  entitled  to  have  the  tax  assessed  against  and 
paid  by  him  deducted  from  the  interest,  has  paid  the  interest  in  full  as  it 
became  due,  without  deducting  the  tax,  he  cannot  afterwards  claim  any 
deduction  therefor  from  the  arrears  of  interest. 


J.  W.  Taylor,  for  complainant.  > 

H.  S.  Little,  for  Atwood  aud  wife. 

The  Chancellor.  The  complainant's  bill  is  filed  to  fore- 
close a  mortgage,  given  to  secure  the  payment  of  a  bond  for 
$750,  bearing  date  on  the  tenth  of  April,  1852,  with  interest. 

The  defendants  by  their  answer  claim  that  interest  has 
been  paid  up  to  the  first  of  April,  1856.  They  admit  that 
the  principal  of  the  bond  is  due,  together  with  interest  from 
that  date,  less  the  suras  paid  by  the  defendants  for  the  taxes 
assessed  on  the  prineijnil  of  the  debt,  from  tiie  date  of  the 
mortgage,  up  to  and  including  the  year  1861.  The  taxes 
60  paid,  the  defendants  claim,  are  a  lawful  deduction  to  be 
made  from  the  interest  due  and  accrued  upon  the  mortgage 
debt.  The  only  question  submitted  for  decision  is,  whether 
upon  the  facts  disclosed  by  the  bill  and  answer,  the  defendants 
are  entitled  to  have  such  deduction  made.  It  is  admitted 
that  the  interest  has  been  paid  for  four  years  after  the  date 
of  the  bond.     The  defendants  clearly  cannot,  in  an  action  at 


36  CASES  IN  CHANCERY. 


Keeney  v.  Atwood. 


law,  recover  back  any  part  of  the  interest  tlius  voluntarily 
paid  with  a  full  knowledge  of  the  facts.  JSIoney  paid  volun- 
tarily cannot  be  recovered  back,  although  it  was  not  legally 
or  equitably  due.      Volenti  non  Jit  ivjuria. 

Upon  this  principle,  it  was  held  that  an  occupier  of  lands, 
who  during  a  course  of  years  paid  the  property  tax  to  the 
collector  under  the  statute,  46  Geo.  3,  cJtap.  65,  and  likewise 
the  full  rent,  as  it  became  due  to  the  landlord,  without 
claiming,  as  he  might  have  done,  any  deduction  on  account 
of  the  tax,  could  not  maintain  an  action  against  the  landlord 
for  any  part  of  the  tax  so  paid.  So  where  a  tenant  pays 
•property  tax  assessed  on  the  j)remises,  and  omits  to  deduct 
it  in  the  next  [)ayment  of  rent,  he  cannot  afterwards  recover 
the  amount  as  money  paid  to  the  use  of  the  landlord.  Denhy 
v.  Moore,  1  Barn.  &  Aid.  123;  Stubbs  v.  Parsons,  3  Ibid. 
516  ;  Broom^s  Legal  Maxims,  {oth  ed.)  201,  204. 

So  if  the  land  tax  and  paving  rates  are  not  deducted  from 
the  rent  of  the  current  year,  they  cannot  be  deducted,  or  the 
amount  of  them  be  recovered  back  from  the  landlord,  in  any 
subsequent  year.     Andrew  v.  Hancock,  1  Brod.  &  Bing.  37. 

In  Stubbs  V.  Parso7is,  Bayley,  J.,  said  :  the  true  construc- 
tion of  the  act  is,  that  a  payment  of  the  land  tax  can  only  be 
deducted  out  of  the  rent  which  has  then  accrued  or  is  then 
accruing  due,  for  the  law  considers  the  ])ayment  of  the  land 
tax  as  a  payment  of  so  much  of  the  rent  then  due  or  grow- 
ing due  to  the  landlord  ;  and  if  he  afterwards  pays  the  rent 
in  full,  he  cannot  at  a  subsequent  time  deduct  the  overpay- 
ment from  the  rent. 

The  act  of  1854,  Nix.  Dig.  851,  §  64,  should  receive  a  simi- 
lar construction.  If  the  holder  of  the  mortgage  resides  iix 
•■the  township  or  county  where  the  mortgaged  premises  lie, 
;the  tax  is  assessed  upon  him.  If  the  mortgagee  resides  else- 
where, the  tax  on  the  money  secured  by  the  mortgage  is  to 
foe  assessed  against  and  paid  by  the  mortgagor  in  the  town- 
;ship  where  the  lands  lie.  And  it  is  enacted,  that  ^^  the  re- 
eeipt  of  the  collector  shall  be  a  legal  paymerd  for  so  much  of 
the  interest  of  said  mortgage,  and  be  allowed  and  deducted 


FEBRUARY  TERM,  1863.  37 

Keeney  v.  Atwood. 

therefrom  by  the  onorlgagee."  The  payment  of  tlie  tax  and 
the  receipt  of  the  collector  is  a  legal  payment  for  so  much 
of  the  interest  of  the  mortgage,  and  is  to  be  deducted  there- 
from. It  operates  only  as  a  payment  of  the  bitcrest,  not  of 
the  principal.  It  must  be  intended  to  be  a  payment  of  the  ac- 
crued and  accruing  interest,  not  of  interest  to  grow  due  ia 
future.  It  is  not  a  set-off  to  be  made  against  a  demand 
that  may  afterwards  arise,  but  a  payment  of  a  subsisting  or 
accruing  debt.  Tliis  is  the  natural  interpretation  of  the  lan- 
guage, and  it  is  in  accordance  with  the  sound  policy  of  the 
act.  The  tax  is  upon  the  propeity  of  the  obligor.  The  bur- 
den is  upon  him.  He  is  entitled  not  only  to  be  informed  of 
its  existence  and  amount,  but  to  pay  it  year  by  year  as  it  is 
assessed.  Not  only  serious  inconvenience  but  great  injustice 
would  be  produced  by  suflPering  the  mortgagor  to  pay  the 
interest  on  the  bond  for  a  series  of  years  without  claiming 
any  deduction  for  taxes,  and  then  to  claim  the  whole  amount 
in  a  single  year.  The  burden  would  be  still  greater  and  the 
injustice  more  aj)parent,  if  the  claim  is  permitted  to  be  made 
after  the  death  of  the  mortgagor,  or  an  assignment  of  the 
mortgage.  Its  operation  then  would  be  to  compel  one  party 
to  pay  the  tax  assessed  upon  the  property  of  another,  and 
the  claim  if  permitted,  may  be  set  up  after  any  lapse  of  time 
however  great.  No  statute  of  limitations  can  run  against  it, 
for  the  statute  makes  it,  not  a  set-off  or  legal  demand,  but  a 
payment  of  the  interest  j>ro  Utnto.     • 

But  there  is  another  and  equally  decisive  oljection  in  this 
case  to  the  allowance  of  the  taxes  as  a  payment  of  interest. 
There  is  no  averment  in  the  answer,  that  when  the  taxes 
were  assessed,  the  mortgagee  did  not  reside  in  the  township 
or  county  where  the  mortgaged  premises  lie.  For  all  that 
a[)pears,  the  mortgagee  may  have  resided  in  the  county 
where  the  mortgaged  premises  lie,  or  he  may  have  resided 
out  of  the  state.  In  either  event,  the  defendants  are  not  en- 
titled to  the  deduction.  If  the  holder  of  the  mortgage  resided 
in  the  township  where  the  mortgaged  premises  lie,  the  tax 
should  have  been  assessed  against  him,  and  not  against  the 


38  CASES  IN  CHANCERY. 

Micliener  v.  Lloyd. 

mortgagor.  If  he  lived  out  of  the  state,  he  was  not  h'able  to 
be  assessed,  nor  is  the  mortgagor  entitled  to  any  dednction 
on  that  account.  The  act  of  1854  does  not  subject  to  taxa- 
tion, the  bonds,  mortgages,  and  other  choses  in  action  of 
persons  who  are  not  inhabitants  of  this  state.  State  v.  Branin, 
3  Zah.  484  ;  Dolman  v.  Cook,  1  McCarter  56. 

The  facts  stated  in  the  answer  should  show  a  valid  defence 
to  the  claim. 

Tiiere  must  be  a  reference  to  a  master,  with  instructions 
to  disallow  the  claim  for  deduction  from  the  arrears  of  in- 
terest on  account  of  taxes. 


William  P.  Michener,  William  House  and  Joshua 
Thompson,  Commissioners,  &c.,  vs.  Stacy  Lloyd  and 
others. 

Land  owned  by  two  tenants  in  common  was  ordered  to  be  sold  b}"^  com- 
missioners jippointed  to  make  partition  thereof.  At  the  first  sale  the  land 
was  struck  off  to  one  of  the  tenants  in  common,  who  refused  to  accept  the 
deed  or  pay  the  purchase  money.  The  premises  were  tiiereupon  again 
exposed  to  sale,  and  struck  ofi'  for  a  less  sum.  By  the  terms  of  the  first 
6ale,  if  the  purchaser  refused  to  comply  with  tlie  conditions,  the  property 
was  to  be  resold,  and  the  purchaser  held  liable  for  the  loss.  The  deficiency 
on  the  second  sale  was  §1200.  On  the  distribution  of  the  proceeds  of  sale, 
the  co-tenant  claimed,  as  against  the  purchaser  at  the  first  sale,  an  allow- 
ance for  the  loss  sustained  by  reason  of  his  non-compliance  with  the  con- 
ditions. The  claim  being  disputed,  and  an  order  of  distribution  having 
been  made,  thecommissioners  refused  to  pay  over  the  money  in  compliance 
•with  the  terms  of  the  order,  and  filed  a  bill  of  interpleader  asking  to  have 
the  right  determined.  There  was  some  dispute  as  to  the  terms  of  the  order 
for  distribution.     Held — 

1.  The  only  legal  evidence  of  the  terms  of  the  order  of  the  court,  is  the 
record  or  a  duly  certified  copy  thereof.  Evidence  of  what  passed  at  the 
time  of  making  it,  or  of  the  precise  terms  of  the  order  itself  as  directed  by 
the  court,  is  incompetent. 

2.  The  deficiency  incurred  by  a  resale  of  the  property,  can  only  be  re- 
covered by  an  action  brought  by  the  commissioners,  and  when  recovered, 
be  distributed  by  order  of  the  court,  as  part  of  the  money  arising  from  the 
sale  of  the  laud. 


FEBRUARY  TERM,  1863.  39 

^licliener  v.  Lloyd. 

3.  Tlie  deficiency  can  constitute  no  legal  set-off  against  the  claims  of  the 
defaulting  co-tenant  for  his  share  of  the  proceeds  of  sale  under  the  order 
for  distribution. 

4.  The  case  furnishes  no  ground  for  a  bill  of  interpleader  by  the  com- 
raissiohers. 


S.  A.  Allen,  for  complainants. 
A.  Sinnickson,  for  Lloyd. 

The  Chancellor.  The  complainants  are  conrmissioners, 
appointed  by  a  judge  of  the  Court  of  Common  Pleas  of  Salem 
county,  to  make  partition  of  certain  real  estate  owned  by 
Stacy  Lloyd  and  Thomas  Mulford  as  tenants  in  common. 
The  commissioners  having  reported  that  partition  of  the  land 
could  not  be  made,  they  were  ordered  to  sell  the  same  under 
the  provisions  of  the  statute.  At  the  first  sale,  Lloyd,  one  of 
the  tenants  in  common  of  the  land,  became  the  |)urchaser 
for  ^4030.  Lloyd  having  failed  to  comj)ly  with  tlie  condi- 
tions of  sale,  and  refusing  to  aceej)t  a  deed  or  pay  the  pur- 
chase money,  the  premises  were  again  exposed  to  sale  and 
were  struck  off  to  Mulford,  the  other  tenant  in  common,  for 
$2830. 

The  sale  having  been  confirmed,  lie  paid  the  ]nirchase 
money  and  received  title.  One  halt"  of  the  net  proceeds  of 
the  sale  were  ordered  by  the  court  to  be  paid  to  Mulford, 
one  of  the  owners,  and  after  satisfying,  out  of  the  other  half 
of  the  net  proceeds,  certain  encumbrances  upon  the  share  of 
Lloyd  in  the  said  land,  the  court  directed  the  residue  thereof, 
being  $660.60,  to  be  paid  to  Lloyd,  the  other  tenant  in 
common. 

One  of  the  terms  of  the  first  sale  was,  that  if  the  purchaser 
refused  to  comply  with  the  conditions  and  pay  the  purchase 
money,  the  property  would  be  resold,  and  if  it  sold  for  less 
than  at  the  first  sale,  the  purchaser  would  be  held  liable  for 
the  difference.  The  deficiency  on  the  second  sale  was  $1200. 
Mulford  claims,  as  against  his  co-tenant  who  became  the  pur- 


40  CASES  IN  CHANCERY. 

Michener  v.  Lloyd. 

chaser,  that  he  is  entitled  to  receive  one  half  of  this  sum. 
Notice  of  this  chiiiii  having  been  given  to  the  coniinissioners, 
they  refused  to  })ay  over  the  money  to  Lh)yd  in  compliance 
with  the  order  of  the  Court  of  Common  Pleas,  and  filed  their 
bill  of  interpleader  in  this  court,  asking  to  have  the  right 
determined. 

The  order  of  the  Court  of  Common  Pleas  expressly  directs 
the  commissioners  to  pay  ov^er  the  net  proceeds  of  the  sale  of 
Lloyd's  share  of  the  land,  after  satisfying  the  legal  encum- 
brances thereon,  to  Lloyd.  There  is  no  allegation  of  fraud 
in  obtaining  the  order.  Some  question  is  raised  and  evi- 
dence offered,  as  to  what  passed  at  the  time  of  making  the 
order,  and  as  to  the  precise  terms  of  the  order  itself  as 
directed  by  the  court.  But  this  evidence  is  clearly  incom- 
petent. The  only  legal  evidence  of  what  the  order  actually 
made  was,  is  the  record  or  a  duly  certified  copy  thereof. 
The  court  will  not  go  behind  the  record  to  ascertain  what 
was  said  at  the  time  of  making  the  order.  If  the  entry  iu 
the  minutes  was  erroneous,  the  proj)er  remedy  would  have 
been  by  application  to  the  court  in  which  it  was  made.  But 
it  is  evident  that  there  was  no  mistake  in  the  entry  of  the 
order.  It  is,  in  flict,  the  only  order  that  could  properly  have 
been  made.  The  statute  requires  that  the  moneys  arising 
from  the  sale  shall  be  ordered  by  the  court  to  be  paid  by  the 
commissioners  to  the  parties  interested  in  the  real  estate  so 
sold,  in  proportion  to  their  respective  rights  in  the  same. 
Nix.  Dig.  605,  §  21.  The  court  has  no  alternative  and  no 
discretion  on  the  subject.  The  encumbrances  on  the  respec- 
tive shares  are  of  course  to  be  satisfied.  The  value  of  each 
share  of  the  property,  over  and  above  the  encumbrances 
tlereon,  alone  represents  the  right  of  the  respecitive  owners. 
It  was  the  dutv  of  the  commissioners  to  have  paid  the  money 
in  compliance  with  the  order  of  the  court.  The  order  would 
have  afforded  them  full  protection.  The  rights  of  those  in- 
terested were  settled  by  the  determination  of  the  court. 

The  complainants  are  entitled  to  no  relief  in  equity.     If 
the  first  purchaser  was  liable  for  the  amount  of  the  deficiency 


FEBRUARY  TERM,  1863.  41 

Miclienor  v  Lloyd. 

which  occured  upon  the  resale,  it  was  the  province  of  the 
commissioners  to  have  enforced  its  payment,  by  suit  or  other- 
wise, and  to  have  carried  the  money  thus  recovered  to  the 
account  of  sales.  It  would  thus  have  represented  a  part  of 
the  moneys  arising  from  the  sale  of  the  real  estate,  and  been 
subject  to  distribution  among  the  owners.  But  what  rigiit 
have  the  commissioners  now  to  recover  tiiis  money?  The  net 
proceeds  of  the  sale  have  been  ascertained  and  distributed, 
under  the  order  of  the  court.  The  duty  of  tlie  commissioners 
is  ended.  They  are  fundi  officio,  and  if  the  money  could  be 
recovered  by  them,  by  what  authority  is  it  to  be  drawn  out 
of  their  hands?  AVhat  claim  has  the  owner  of  the  land  to 
it?  He  cannot  claim  it  as  a  part  of  the  moneys  arising  from 
the  sale  of  the  land.  That  has  already  been  ascertained  and 
paid  to  him  under  the  order  of  the  court.  If  recovered  at 
all,  it  must  be  as  damages  sustained  by  the  breach  of  the 
contract  contained  in  the  conditions  of  sale.  Tiiat  contract 
was  v/ith  the  commissioners,  and  they  alone  would  have  the 
right  to  enforce  it.  And  the  remedy  ui)on  that  contract 
would  pro})erly  not  be  in  this  court,  but  in  a  court  of  law. 
Until  the  right  to  recover  upon  that  contract  is  established, 
it  is  not  perceived  that  either  the  commissioners  or  the  land 
owners  have  any  equity  which  would  enable  them  to  come 
into  this  court  for  relief. 

But  if  there  be  a  subsisting  equity  as  between  Mulford 
and  Lloyd,  upon  which  the  former  is  entitled  to  relief,  it  is 
clear  that  there  is  no  ground  n{)on  which  these  complainants 
can  file  a  bill  of  interpleader;  because  Mulford  has  no  legal 
or  equitable  claim  as  against  them  for  the  fund.  It  is  in 
their  hands  as  the  trustees  of  Lloyd.  They  are  required  by 
law  and  are  directed  by  the  order  of  the  court,  to  j)ay  it  to 
him.  No  lien  or  claim  upon  the  fund  has  been  created  or 
acquired  since  the  order  of  the  court,  which  can  raise  any 
doubt  as  to  the  rights  of  the  parties.  No  attachment  or  exe- 
cution has  been  served.  It  is  simply  an  attempt  of  Mulford 
to  enforce  a  supposed  equitable  or  legal  demand  against 
Lloyd,  by  preventing   the    trustees    from    paying   over   the 


42  CASES  IN  CHANCERY. 

Atwatcr  v.  Walker. 

money  to  the  rightful  owner.  This  is  not  the  office  of  a  bill 
of  interpleader.  3IUforcVs  Eq.  PL  142;  3  DanielVs  Ch.  Pr. 
1759;   Story's  Eq.  PL,  §  292  ;   2  Story's  Eq.,  §  816,  817. 

The  bill  is  not  filed  for  the  protection  of  the  ci)n)[)lainants 
against  the  adverse  claims  of  the  defendants.  They  are,  as 
the  evidence  shows,  indemnified  by  Mirlford,  one  of  the  con- 
testing claimants  to  the  fund.  The  bill  is  obviously  filed,  if 
not  at  his  instance,  yet  in  his  interest  and  for  his  benefit. 
riis  answer  is  a  mere  echo  to  the  charij-es  and  allegations  ol' 
the  bill. 

The  bill  must  be  dismissed,  with  costs. 

ClTKD  in  Townsend  v.  Simon,  9  V>\  241. 


James  C.  Atwateu  vs.  Frederick  W.  Walkep., 

1.  The  validity  of  a  contract  must  depend  virion  the  laws  of  the  state 
where  tlie  contract  was  made. 

2.  Where  the  answer  alleges  generally,  that  the  contract  upon  which  the 
suit  is  brought  is  usurious,  without  any  more  specific  allegation,  it  must 
be  intended  that  the  defence  is  that  the  contract  is  in  viol  i( ion  of  the  stat- 
utes of  this  slate,  and  to  that  objection  alone  ihe  defence  must  be  limited. 


Mills,  for  comi)laInant. 

If  mortgage  is  usurious,  it  is  so  by  law  of  New  York.  The 
usury  depends  on  the  lex  loci  contractus. 

It  was  incumbent  on  the  defendant  to  show  fact  as  well  by 
pleadings  as  proofs.      Campion  v.  Kille,  1  McCarter  229. 

If  the  security  was  once  valid,  it  cannot  be  invalidated. 
Donnington  v.  Meeker,  3  Stockt.  ZQ2',  Varick's  E.v'r  v.  Crane, 
3  Green's  Ch.  R.  128;  19  Johns.  R.  294;  2  lbi<L  455;  2 
Caines'  Cases  in  Error  QQ  ;    Chitti/  on  Contracts  607. 

Catler,  for  defendant. 

The  Chancellor.    The  otaly  defence  raised  by  the  plead- 


FEBRUARY  TERM,  1863.  43 

Atwater  v.  Walker. 

ings  to  the  claim  of  the  complainant  for  a  decree  is,  that 
the  mortgage  sought  to  be  foreclosed  is  void  for  usury.  Tlio 
answer  states  the  cireuiustances  under  which  tlie  loan  was 
made,  which  are  relied  upon  as  constituting  the  usury,  and 
prays  that  the  mortgage,  so  executed  by  the  defendant  to 
the  said  James  C.  Atwater,  may  be  decreed  to  be  usurious, 
void,  and  of  no  effect.  It  appears  by  the  evidence  that  the 
negotiations  for  the  loan  were  all  carried  on  in  the  city  of 
New  York,  and  that  the  loan  was  made  there.  The  com- 
plainant was  at  the  time  a  resident  of  the  state  of  New  York. 
It  is  clearly  a  New  York  contract,  and  its  validity  must  de- 
pend upon  the  laws  of  that  state. 

It  has  been  repeatedly  held  in  this  court,  that  where  the 
answer  alleges  generally  that  the  contract  is  usurious,  without 
any  more  specific  allegation,  it  must  be  intended  that  the  de- 
fence is  that  the  contract  is  in  violation  of  the  statutes  of  this 
state,  and  to  that  objection  alone  the  defence  must  be  limited, 
Cotheal  V.  Bhjdenhurgh,  1  Haht.  Ch.  R.  19:  Dolman  v. 
Cooh,  1  McCarter  iJQ  ;   Gtmpion  v»  Kille,  Ibid.  229. 

Though  the  point  had  been  repeatedly  decided  in  this 
court  and  elsewhere,  it  had  not  been  formally  sanctioned  by 
the  Court  of  Appeals  of  this  state  at  the  time  this  cause  was 
argued.  An  appeal  had  been  taken  in  the  case  of  Kille  v. 
Campion,  and  that  point,  among  others,  had  been  argued  and 
■was  then  pending  undecided  in  that  court.  The  decision  has 
since  been  pronounced,  affirming  the  decree  and  sustaining 
the  principle  as  hitherto  understood  and  recognized. 

The  ground  of  the  j)rinciple  is  stated  with  great  clearness 
and  force  by  Mr.  Justice  Vredenburgh,  who  delivered  the 
opinion  of  the  Court  of  Appeals,  and  the  doctrine  must  be 
regarded  as  finally  settled. 

This  renders  the  evidence'  in  the  cause  inapplicable  to  the 
issue,  and  the  defence  unavailing. 

This  point  was  treated  at  the  hearing  as  an  open  question, 
and  the  cause  was  heard  upon  the  merits.  Inasmuch  as  a 
large  amount  of  testimony  has  been  taken,  and  the  case  upon 
the  merits  was  very  fully  discussed   by  counsel,  it   may  be 


44  CASES  IN  CHANCERY. 

Hoagland  v.  Titus. 

proper  and  satisfactory  to  the  parties  to  state  that,  aside  from 
the  technical  difficulty  arising  out  of  the  pleading,  I  am  of 
opinion  that  the  defence  was  not  sustained  by  the  evidence. 
The  usury  was  not  proved. 

The  com})lainant  is  entitled  to  a  decree. 

Note. — From  this  decree  of  the  Chancellor  an  appeal  was 
taken,  and  the  decree  unanimously  affirmed  at  November 
Term,  18G3. 

Cited  in  Leake  v.  Bergen,  12  C.  E.  Gr.  3G1. 


Peter  Hoagland  vs.  Harman  H.  Titus  and  others. 

1.  Where  the  evidence  in  a  cause  fails  to  prove  tliat  a  transfer  of  promie- 
sory  notes  was  procured  by  fraud  or  false  accusation,  or  by  any  combina- 
tion or  conspiracy,  it  seems  nevertheless,  that  the  transfer  may  be  held 
invalid  on  the  ground  of  surprise,  coupled  with  evidence  of  mental  weak- 
ness. 

2.  On  this  ground  under  the  circumstances  a  re-hearing  was  ordered.* 


The  bill  in  this  cause  was  filed  May  11th,  1861.  Pursuant 
to  the  prayer  of  the  bill  an  injunction  issued,  restraining  the 
defendants  from  trailsferring  or  negotiating  three  several 
notes,  amounting  to  ^3429,  endorsed  by  the  complainant  to 
Harman  H.  Titus.  A  motion  was  made  to  dissolve  the  in- 
junction and  argument  was  had  thereon.  The  motion  was 
denied.  The  opinion  of  the  Chancellor  denying  the  motion, 
will  be  found  reported  in  1  3IcCarter  81. 

The  complainant  now  seeks  to  set  aside  the  transfer  of  the 
notes. 

J.  V.  Voorhees  and  Ransom,  for  complainant. 

1,  The  transfers  were  without  consideration. 

2.  Consideration  in  part  illegal  ;  it  being  the  suppression 

*The  cause  was  not  re-heard,  the  parties  having  in  the  meaQtimeefiected 
an  amicable  settlement. 


FEBRUARY  TERM,  1863.  45 

Hoagland  v.  Titus. 

of  a  critiiiiial  prosecution.  1  Fursons  on  Contracts,  380,  and 
cases  cited  in  note;  Collins  v.  Blanfeni,  2  Wils.  347;  Arm- 
strong V.  Tuler,  11  Wheat.  258;  Deering  v.  Chapman.,  22 
Maine  488;  iTt'iV  v.  Lecman,  9  Queen's  ^.  371  ;  Gardner  v. 
J/a.ww,  9  i?.  J/oji.  90;  7  Gr^^oi/.  461  ;  3  Comst.  19;  2  Pg^e?-5 
527.  " 

3.  Transfer  procured  under  duress. 

Beasley,  for  defendants. 

The  defiudants  are  not  here  to  enforce  a  contract.  The 
complainant  is  not  in  a  position,  therefore,  to  invoke  the 
benefit  of  the  second  and  tliird  points. 

Tliere  is  no  duress.  1  Parsons  on  Cont.  319,  320 ;  1  Storifs 
Eq.  Jur.,  §  239  ;  1  Bla.  Com.  130,  notes;  1  Eden  on  Inj.  27. 

It  does  not  fall  within  cases  of  surprise.  Evans  v.  Lle- 
wellyn, 2  Bro.  Ch.  B.  150;  1  Cox  333. 

The  Chancellor.  On  the  twelfth  of  February,  1861, 
Peter  Hoagland,  the  complainant,  endorsed  and  delivered  to 
Harraan  H,  Titus,  one  of  the  defendants,  three  j)ronnssory 
notes,  then  held  and  owned  by  him,  viz.  one  made  by  Dennis 
S.  Hoagland  to  the  complainant,  for  ^2179  ;  another  made 
by  Harman  Hoagland,  for  $950 ;  and  the  third  made  by 
Christopher  S.  Ploagland,  for  $300;  all  of  which  were  then 
past  due,  and  vi^hich  remained  in  the  hands  of  the  endorsee 
at  the  time  of  filing  the  bill. 

The  bill  seeks  to  set  aside  the  transfers  of  these  notes  on  the 
ground  that  they  were  obtained  by  fraud,  false  accusations  and 
threats,  and  without  any  value  whatever;  by  means  of  a 
fraudulent  conspiracy  between  the  defendants,  the  said  Har- 
man, and  his  sister  and  mother. 

On  filing  the  bill  an  injunction  issued  to  restrain  the  trans- 
fer of  the  notes  by  the  endorsee. 

So  far  as  the  case  rests  upon  the  charges  that  the  transfer 
of  the  notes  was  procured  by  fraud  or  false  accusation,  or  by 
any  combination  or  conspiracy  between  the  defendants,  it  is 
not  sustained  by  the  evidence.     Jane  Titus,  one  of  the  de- 

VOL.  I.  C 


46  CASES  IN  CHANCERY. 

Hoagland  v.  Titu3. 

fendants,  is  the  sister  of  the  complainant,  and  the  mother  of 
Harman  H.  and  Lenah  Titus,  the  other  defendants.  At  the 
time  of  this  transaction,  the  complainant  lived  with  his  sister 
and  her  family,  in  the  county  of  Somerset.  On  the  eleventh 
of  February,  1861,  a  note  was  sent,  at  the  mother's  request, 
to  her  son  Harman,  apprizing  him  that  his  sister  Lenah  was 
pregnant  by  her  uncle,  the  complainant,  and  that  the  family 
wanted  his  advice.  The  note  was  received  by  the  son  on  the 
morning  of  the  twelfth  of  February,  at  the  city  of  Trenton. 
He  went  that  evening  to  Somerville,  where,  after  consulting 
counsel  and  in  pursuance  of  his  advice,  he  sued  out  a  warrant 
upon  his  own  affidavit  against  the  complainant  on  a  charge 
of  fornication,  placed  the  warrant  in  the  hands  of  a  constable, 
and  accompanied  by  the  officer,  reached  his  mother's  house 
before  midnight,  and  within  three  hours  afterwards  the  notes 
were  endorsed  and  delivered  to  Harman  H.  Titus.  There  is 
nothing  in  the  case  to  justify  a  suspicion  that  the  son  was 
not  actuated  in  the  whole  transaction  by  the  best  of  motives, 
or  that  the  son  and  the  mother  did  not  act  upon  tiie  full  con- 
viction and  belief  that  the  com[)laiuant  was  guilty  of  the 
crime  laid  to  his  charge. 

Nor  is  there  any  evidence  to  justify  the  belief  that  the 
charge  against  the  complainant  is  false.  The  mother  of  the 
child,  in  her  answer,  expressly  states  that  he  is  the  father  of 
the  child,  and  if  there  were  room  for  doubt  upon  that  point, 
there  is  the  most  satisfactory  evidence  that  tlie  complainant, 
notwithstanding  the  express  allegations  contained  in  his  bill  to 
the  contrary,  was  guilty  of  criminal  intercourse  with  the 
mother  of  the  child.  The  investigation  of  the  case  must  pro- 
ceed upon  the  ground  that  there  was  neither  a  false  charge, 
nor  conspiracy,  nor  fraud  resorted  to,  to  obtain  the  transfer 
of  the  notes. 

Nor  is  there  any  evidence  that  the  transfers  were  made 
under  duress.  The  evidence  is,  that  the  warrant  was  not 
served,  that  the  officer  was  not  seen  by  the  complainant, 
that  the  presence  of  the  officer  in  the  house,  or  even  the  fact 
of  the  existence  of  the  warrant,  was  not  made  known  to  the 


FEBRUARY  TERM,  1863.  47 

Hoagland  v.  Titus. 

complainant  until  after  the  notes  had  been  endorsed  and  de- 
livered. 

It  is  farther  urged  that  the  endorsement  of  these  notes  is 
founded  upon  an  illegal  consideration,  to  wit,  the  suppression 
of  a  criminal  prosecution,  or  if  that  fact  is  not  established, 
then  that  the  contract  was  without  any  valuable  consideration 
whatever,  being  founded  merely  on  the  moral  obligation 
resting  on  the  complainant  to  repair  the  wrong  which  he  had 
inflicted.  It  is  true  that  both  these  defences  are  available 
at  law,  but  it  is  apparent  that  if  the  bill  is  dismissed  and  the 
injunction  dissolved,  the  notes  may  be  at  once  transferred  to 
a  bona  fide  holder,  and  the  com{)lainant  be  thus  deprived  of 
all  opportunity  of  making  defence.  1  am  the  more  disposed 
to  retain  the  cause,  in  order  to  the  discussion  of  another  ob- 
jection suggested  on  the  argument,  viz.  that  the  contract  ia 
invalid  on  the  ground  of  surprise,  coupled  as  it  is  with  evi- 
dence of  the  mental  weakness  of  the  complainant.  The  evi- 
dence on  the  part  of  the  defendants  is,  that  the  complainant, 
as  a  recompense  for  the.  injury  he  had  inflicted  upon  hia 
niece,  and  in  order  to  her  future  support,  not  only  assigned 
to  her  the  notes  in  question,  amounting  to  about  $3500,  but 
that  he  also  agreed  to  transfer  to  her  every  article  of  per- 
gonal pro{)erty  he  owned,  even  to  his  clothing,  amounting  in 
value  to  ^500  more.  Having  thus  voluntarily,  as  is  alleged, 
agreed  to  strip  hiinself  of  his  entire  property,  he  refused  to 
go  to  Somerville  to  make  a  legal  transfer  of  the  property, 
and  was  only  induced  to  go  by  threats  of  arrest  and  the  in- 
fluence of  the  officer  who  held  the  warrant  and  the  authority 
to  arrest  him.  The  claim  to  the  residue  of  the  complainant's 
property,  as  well  as  the  execution  of  any  fuither  instrument 
of  transfer,  was  al)andoned  under  the  advice  of  counsel,  but 
not  from  any  objection  made  by  the  complainant.  On  the 
contrary,  he  told  them  to  take  all  he  had,  though  in  a  manner 
that  suggested  to  counsel  the  idea  that  it  was  not  of  his  free 
will.  A  release  was  prepared  by  counsel  of  all  claims  against 
him  in  relation  to  the  transaction,  but  he  utterly  refused  to 
accept  it.     On  his  return  from  Somerville  he  borrowed  money 


48  CASES  IN  CHANCERY. 

Cummins  v.  Little. 

to  pay  the  fees  of  counsel  employed  against  him,  of  the  officer 
■who  arrested  him,  and  the  travelling  expenses  of  the  party 
making  the  charge  against  him.  All  this,  it  is  suggested, 
was  induced  by  the  promptings  of  I'eraorse,  in  order  to  make 
atonement,  as  far  as  possible,  for  the  deep  wrong  that  he  had 
inflicted.  It  may  be  so.  But  it  also  gives  rise  to  considera- 
tions of  a  different  character,  and  in  connection  with  the  pre- 
vious history  of  the  complainant,  renders  it  proper  tiiat  the 
case  should  undergo  a  more  full  discussion  and  consideration. 
I  shall  order  a  re-hearing.  In  the  meantime,  I  earnestly 
hope  that  an  effort  will  be  made  by  the  parties  to  effect  an 
amicable  settlement  of  the  difficulty.  A  great  wrong  has 
been  done  by  the  complainant  for  which  he  ought  to  make 
reparation,  and  it  is  desirable  that  it  should  be  promptly 
done,  without  further  litigation,  expense  or  occasion  for  scan- 
dal. If  the  settlement  cannot  be  made,  I  will  direct  the 
cause  to  be  set  down  and  re-heard  at  the  present  term. 


Andrew  J.  Cummins  vs.  Ezekiel  Little  and  others. 

1.  The  well  settled  doctrine  of  the  court  of  equity  is,  that  mere  inadequacy 
of  price  affords  no  ground  of  relief,  either  against  a  private  contract  or  a 
judicial  sale. 

2.  But  inadequacy  of  price  may  be  so  gross  and  unconscionable  as  to 
ehock  the  conscience,  and,  in  the  case  of  a  private  contract,  to  amount  to 
conclusive  and  decisive  evidence  of  fraud  ;  or,  in  the  case  of  a  judicial  sale, 
to  constructive  fraud  and  abuse  of  trust. 

3.  That  is  a  public  and  a  proper  place  for  setting  up  advertisements, 
contemplated  by  the  act  regulating  sales  of  real  estate,  which  is  likely  to 
give  information  to  those  interested,  and  who  may  probably  become  bidders 
at  the  sale. 

4.  The  sheriff  is  bound  to  conduct  the  sale  so  as  to  protect  the  rights  and 
promote  the  interests  of  all  parties  in  interest,  and  to  this  end  to  secure,  aa 
far  as  practicable,  the  most  general  diffusion  of  the  notice  of  sale. 

5.  The  true  test  of  a  propey  exercise  of  discretion  by  the  sheriff  in  setting 
Dp  notices  is,  whether  he  has  set  tliem  up  as  a  discreet  man,  desirous  of 
effecting  a  sale  of  liis  property  to  the  greatest  advantage,  would  have  done. 


FEBRUARY  TERM,  1863.  49 


Cummins  v.  Little. 


6.  If  a  sheriff  abuses,  to  the  detriment  of  subsequent  encumbrancers  or 
of  the  defendant  in  execution,  the  discretion  vested  in  him  by  law  to  make 
Bale  under  execution,  a  court  of  equity  will  grant  relief,  although  there 
has  been  a  formal  compliance  in  the  conduct  of  the  sale  with  all  the  re- 
quirements of  the  statute. 

7.  It  is  not  necessary  that  there  should  be  actual  fraud,  committed  or 
meditated.  The  abuse  of  discretion  in  the  execution  of  the  trust  is  a  con- 
structive fraud,  against  which  equity  will  relieve.  » 

8.  Where  a  sale  by  a  public  officer  is  conducted  in  violation  of  the  spirit 
and  policy  of  the  law,  and  so  as  in  fact  to  defeat  the  just  claims  of  encum- 
brancers, or  greatly  to  prejudice  the  rights  of  the  defendant  in  execution, 
the  sale  will  be  set  aside,  though  the  formal  requirements  of  the  statute 
have  been  complied  with. 

Depue,  for  complainant. 

1.  We  allege//Tmc?,  or  gross  negligence  in  conducting  sale 
amounting  to  fraud  ;  also  fraud  in  keeping  bidders  from  sale. 

2.  Accident  or  surpi'ise  in  mode  of  advertising  sale. 

3.  Sale  void,  because  the  property  was  not  legally  adver- 
tised. Den  V.  Pliilhower,  4  Zab.  796  ;  Pliilhower  v.  Todd,  3 
Stocld.  313. 

Principles  upf)n  which  equity  interferes.  Seaman  v.  Rig- 
gins,  1  Green'' H  Ch.  i?.  214  ;  Skillman  v.  Holcomb,  1  Beas.  131. 

No  distinction  between  those  principles  in  law  and  equity. 
Eberhai'd  v.  Gilchrist,  3  Stockt.  166. 

Vanatta,  for  defendants. 

Complainant,  if  he  recover  at  all,  must  recover  upon  case 
made  by  the  bill.  Andrews  v.  Farnham,  2  Stockt.  91  ;  Par- 
sons V.  Heston,  3  Stockt.  155  ;  Day  v.  Lyon,  Ibid.  331  ; 
Brantingham  v.  Brantingham,  1  Beas.  160. 

Insufficiency  of  consideration  will  not  suffice  to  disturb 
sale.  Saxton  3  ;  Ibid.  55;  1  Green's  Ch.  i^.  214;  2  Ibid. 
214,  460  ;  3  Halst.  Ch.  R.  34  ;  3  Stockt.  167. 

The  court  will  not  visit  upon  the  purchaser  the  miscon- 
duct of  the  sheriff,  unless  purchaser  be  a  participant  in  the 
fraud. 

If  a  man  takes  a  conveyance  without  search,  there  is  no 
surprise.     Broom's  Leg.  Max.  692-3  ;  Dai't  on  Vendors  406  ; 


60  CASES  IN  CHANCERY. 

Cummins  v.  Little. 

1  Story's  Eq.  Jur.,  §  251  ;  4  Johns.  Ch.  B.  5G6  ;  Parkhmst 
V.  Cory,  3  Stockt.  233 ;  Sklllraan  v.  Holcomb,  1  Beas.  131. 

Beasley,  in  reply. 

The  policy  of  the  court  is  to  protect  judicial  sales.  But  it 
does  not  extend  to  encourage  encumbrances.  Tripp  v.  Coohj 
26  Wend.  158.  " 

Mr.  Beasley  further  cited  Tiernan  v.  WlUon,  6  Johns.  Ch. 
iJ.  411;  Merwln  v.  Synith,  1  Green's  Ch.  E.  182;  William- 
son V.  Dafe,  3  Johns.  Ch.  R.  290;  Co///er  v.  Whipple,  13 
W'Vnd  226  ;  Howell  v.  Baker,  4  Johns.  Ch.  R.  118  ;  2  Phill. 
Ev.,  §  114;  1  (^rmi^.  Ev.,  §  115, 

The  Chancellor,  The  bill  is  filed  to  foreclose  a  mort- 
gage from  Little  to  the  complainant,  for  $3249.33,  bearing 
date  on  the  twenty-first  of  November,  1859.  The  mortgage 
covers  three  tracts;  one,  a  timber  lot  of  thirty-nine  acres ; 
another,  known  as  the  saw  mill  tract,  of  one  acre  and  forty- 
three  hundredths;  and  the  third,  a  farm  of  one  hundred  and 
sixty-five  acres  and  thirty-six  hundredths.  The  first  two 
lots  were  of  comparatively  small  value.  The  value  of  the 
farm  was  $9000.  It  was  subject  to  three  prior  mortgages, 
amounting  to  $3870.34.  On  the  fourth  of  November,  1861, 
the  equity  of  redemption  in  the  farm  was  sold  by  the  sheriff 
to  satisfy  an  execution  at  law,  for  $80.41,  the  amount  of  debt 
and  costs  due  upon  the  execution.  The  judgment  under 
which  the  property  was  sold  was  prior  to  the  complainant's 
mortgage,  and  if  the  sale  be  valid  his  security  is  forfeited. 

There  is  no  material  controversy  as  to  the  value  of  the 
property  sold  or  the  encumbrances  upon  it.  The  farm  was 
worth  at  least  $9000.  The  total  amount  of  encumbrances, 
including  interest  to  the  day  of  sale,  did  not  amount  to  $4800. 
The  equity  of  redemption,  which  was  sold  by  the  sheriff",  was 
"worth  over  $4000.  The  purchaser  came  to  the  sale  prepared 
to  pay  that  price  for  it.  It  was  arranged  before  hand  among 
those  interested  in  the  purchase,  that  they  would  bid  upon 


FEBRUARY  TERM,  1863.  51 

Cummins  v.  Little. 

the  property  enough  to  protect  themselves  and  secure  their 
debt.  This  could  not  be  done  except  by  satisfying  the  pre- 
vious mortgage  of  the  complainant.  This  property,  which 
was  worth  ^4000,  and  which  the  purchasers  were  prepared 
to  take  at  that  price,  was  struck  off  and  sold  for  $80.41. 
Standing  alone,  independent  of  every  other  fact,  ought  such  a 
sale  to  be  sustained?  The  well  settled  doctrine  of  the  court  of 
equity  is,  that  mere  inadequacy  of  price  affords  no  ground 
for  relief,  either  as  against  a  })rivate  contract  or  a  judicial 
sale.  The  sound  rule  of  public  policy  is,  that  biddings  at 
judicial  sales  should  be  encouraged  and  that  persons  should 
not  be  deterred  from  bidding,  even  for  purposes  of  specula- 
tion, by  the  apprehension  that  the  sale  will  be  set  aside,  be- 
cause it  was  made  below  its  full  value.  Property  at  a  forced 
sale  must  frequently  be  sold  greatly  below  its  real  value. 
Commercial  revulsions,  financial  embarrassment,  national 
distress,  stringency  in  the  money  market,  uncertainty  about 
the  title,  and  a  variety  of  other  causes,  may  depress  the  price 
of  property  far  below  its  actual  value.  If  mere  inadequacy 
of  price  were  a  ground  of  relief,  the  principle  would  operate 
as  a  stay  law.  It  would  often  happen  that  no  valid  sale 
could  be  made.  If,  therefore,  the  inadequacy  of  price  be 
only  such  as  is  ordinarily  experienced,  or  as  may  naturally 
be  expected  to  result  from  the  vicissitudes  of  human  affairs, 
it  affords  no  ground  for  the  interposition  of  a  court  of  equity. 
But  there  must  be  some  relation  between  the  price  paid  and 
the  value  obtained.  It  must  be  a  sale,  not  a  wanton  sacrifice. 
It  must  be  made  in  the  exercise  of  a  sound  discretion,  and 
in  the  due  execution  of  a  public  trust;  not  an  abuse  of  that  dis- 
cretion and  a  perversion  of  that  trust.  Mere  inailequacy  of 
price  is  no  ground  for  relief,  but  fraud  is  :  and  the  inadequacy 
of  price  may  be  so  gross  and  unconscionable  as  to  shock  the 
eonscienoe,  and,  in  the  case  of  a  private  contract,  to  amount 
to  conclusive  and  decisive  evidence  of  fraud  ;  or  in  the  case 
of  a  judicial  sale,  to  constructive  fraud  and  abuse  of  trust. 

No  judge  or  jurist  has  more  inflexibly  maintained  or  ably 
vindicated   the  familiar  principle,  tiiat   mere   inatlequacy  of 


52  CASES  IN  CHANCERY. 

Cummins  v.  Little. 

price  is  no  ground  of  relief  against  a  judicial  sale,  than  Chan- 
cellor Kent.  Yet  in  a  case  where  the  sacrifice  of  property  was 
much  less  than  in  the  present  instance,  and  tiie  abuse  of  trust 
no  more  glaring,  that  eminent  jurist  said,  "such  a  sale  carries 
an  abuse  on  the  very  face  of  it,  and  leads  to  the  most  op- 
pressive speculation."  Tiernan  v.  Wilson,  6  Julms.  Ch.  R, 
413. 

I  have  said  thus  much  for  the  purpose  of  vindicating  a 
familiar  and  well  settled  principle  from  perversion  and  mis- 
application, and  in  order  to  guard  against  any  inference, 
that  because  this  case  is  decided  upon  other  grounds,  the 
objection  on  the  score  of  gross  and  unconscionable  inadequacy 
of  price  is  regarded  as  untenable.  There  are  other  grounds 
which  admit  of  no  question,  upon  which  this  case  may  be 
disposed  of. 

While  mere  inadequacy  of  price  is  not  of  itself  a  ground  of 
relief,  it  is  always  a  circumstance  which  quickens  tiie  dili- 
gence of  the  court  in  investigating  the  conduct  of  the  officer, 
and  calls  into  prompt  and  vigorous  exercise  its  protecting 
agency  against  abuse  of  power. 

The  complainant's  mortgage  was  the  first  encumbrance 
on  the  land  sold,  after  the  execution  under  which  the  sale 
was  made.  The  effect  of  the  sale  was  utterly  to  defeat  that 
encumbrance,  and  to  deprive  the  complainant  of  an  unques- 
tioned security  for  his  debt.  Was  that  result  the  consequence 
of  the  complainant's  own  laches?  or  did  the  course  of  the 
sheriff  in  conducting  the  sale  naturally  lead  to  the  sacrifice 
of  the  property  and  the  defeat  of  the  complainant's  rights? 
The  complainant  was  not  present  at  the  sale  ;  he  had  no 
notice  of  it.  He  testifies  that  he  neither  had  notice  of  the 
time  or  place  of  sale,  nor  even  of  the  existence  of  the  judg- 
ment and  execution.  This,  it  is  conceded,  will  not  protect 
him,  if  he  had  the  notice  which  the  law  contemplates,  and  the 
sale  was  in  other  respects  conducted  in  accordance  with  the 
spirit  and  intent  of  the  statute. 

Was  it  properly  advertised  ?  The  farm  lies  in  Inde- 
pendence, the  most  eastern   township  in   the  county.     It  la 


FEBRUARY  TERM,  1863.]  53 

Cummins  v.  Little. 

distant  one  mile  and  a  half  from  Vienna;  two  miles  from 
Hackettstovvn  ;  three,  from  Danville;  four,  from  Allamuchy  ; 
all  villages  in  that  township.  The  only  advertisement  in-  the 
township  was  at  a  store  in  Allamuchy,  four  miles  distant, 
near  the  extreme  eastern  border  of  the  county.  One  in  the 
clerk's  office  at  Belvidere,  fourteen  miles  distant  from  the 
farm,  and  three  in  the  viUago  of  Washington,  twelve  miles 
distant.  There  is  nothing  in  the  evidence  to  indicate  that 
there  were  circumstances  which  rendered  Allamuchy  and 
Washington  more  appropriate  places  for  putting  up  notices, 
than  villages  much  nearer  by,  and  to  which  the  farmers  of 
the  vicinity  would  more  naturally  have  resorted.  Three  no- 
tices were  put  up  at  Washington,  as  a  mere  matter  of  con- 
venience to  the  officer  who  resided  there.  The  most  striking 
commentary  upon  the  fitness  of  the  selection  is,  that  not 
more  than  one  of  all  the  witnesses  examined  who  were  inter- 
ested in  the  sale,  derived  his  knowledge  of  the  sale  from 
the  sheriff's  advertisement,  or  even  saw  the  notices  before  the 
day  of  sale. 

It  is  not  alleged  that  the  places  selected  for  setting  up 
these  advertisements,  was  not  a  compliance  with  the  letter  of 
the  statute.  It  was  so :  and  it  would  have  been  equally  a 
compliance  with  the  letter  of  the  statute,  if,  after  putting  up 
one  notice  within  the  township  of  Independence  where  the 
farm  lies,  the  other  four  had  been  set  up  at  unfrequented 
hotels  or  blacksmith  shops  in  the  most  remote  extremities 
of  the  county,  where  they  were  certain  never  to  be  seen  by 
the  parties  interested  or  who  were  likely  to  become  pur- 
chasers. The  statute  simply  prescribes  that  the  notices  shall 
be  set  up  at  five  public  places.  A  public  place  is  a  relative 
term.  What  is  a  public  place  for  one  purpose,  is  not  for 
another.  A  blacksmith  shop  in  the  country,  or  a  tree  at  the 
intersection  of  public  roads,  would  be  a  public  place  within 
the  contemplation  of  the  statute,  if  in  the  vicinity  of  the 
lands,  but  it  would  clearly  be  an  abuse  of  discretion,  thus  to 
advertise  town  lots  in  a  place  twenty  miles  distant.  That  is 
a  public  and  a  proper  place  for  setting  up  notices,  which  is 


54  CASES  IN  CHANCERY. 

Cummins  v.  Little. 

likely  to  give  information  to  those  interested  and  who  may 
probably  become  bidders  at  the  sale.  A  great  deal  is  neces- 
sarily and  designedly  left  to  the  discretion  of  the  officer. 
And  when  that  discretion  is  fairly  exercised,  courts  will  not 
lightly  interfere  with  its  exercise.  Still,  courts  will  guard 
against  its  abuse.  They  will  see  that  it  shall  not  be  so  ex- 
ercised as  to  strip  an  unfortunate  debtor  of  his  property  or 
to  defeat  the  just  claims  of  an  honest  creditor.  Tlie  sheriff 
in  selling  land,  exercises  an  important  public  trust;  and  in 
effecting  the  sale,  he  is  bound  to  conduct  it  so  as  to  protect 
the  rights  and  promote  the  interests  of  all  the  parties  in  in- 
terest, and  to  this  end  to  secure,  as  far  as  practicable,  tiie 
most  general  diffusion  of  the  notice  of  sale.  Would  any  dis- 
creet man,  desirous  of  effecting  a  sale  of  this  Jiirm  to  tiie 
greatest  advantage,  have  set  up  his  notices  as  the  sheriff  did  ? 
This  is  the  true  test  of  the  proper  exercise  of  discretion  by 
the  sheriff. 

But  was  the  place  of  sale  proper  ?  The  law  prescribes  no 
place  of  sale.  It  leaves  it  to  the  discretion  of  the  sheriff. 
The  general,  if  not  universal  custom  in  this  state  down  to  a 
recent  period,  was  to  sell  real  estate  in  the  country  upon  the 
premises  or  at  the  nearest  and  most  convenient  public  house. 
That  practice  has  fallen  in  great  measure  into  disuse,  and  it 
is  believed  to  be  not  unusual  to  sell  lands  at  the  county  seat. 
There  are  obvious  advantages  in  that  practice.  It  affords 
facilities  for  resort  to  the  records  and  to  counsel,  for  settling 
questions  respecting  the  title.  And  in  some  cases,  especially 
where  the  property  is  convenient  to  the  county  seat  or  bidders 
most  likely  to  be  secured  there,  such  course  may  be  advisa- 
ble. But  would  a  sheriff  be  justified  in  advertising  unim- 
proved city  lots  of  small  value,  the  purchasers  of  which  would 
be  looked  for  among  the  operatives  and  mechanics  and 
laborers  of  the  city,  to  be  sold  at  a  place  ten  or  twenty  miles 
distant?  Would  any  man  of  ordinary  discretion  adopt  that 
course  to  effect  an  advantageous  sale  ?  Would  it  be  a  proper 
exercise  of  discretion  in  a  sheriff,  without  some  special  cause, 
to  adopt  that  course  ?  And  if  the  property  was  utterly 
sacrificed  for  want  of  purchasers,  would  the  sheriff  be  justified 


FEBRUARY  TERM,  1863.  55 

Cummins  v.  Little. 

by  the  pretext  that  he  was  authorized  by  law  to  sell  where  he 
pleased  ? 

It  might  be  suggested  that  Washington,  the  place  selected 
by  the  sheriff  for  setting  up  three  of  these  notices,  was  a 
peculiarly  appropriate  j)lace,  both  for  setting  up  the  advertise- 
ments and  for  making  the  sale,  inasmuch  as  it  was  in  the 
midst  of  a  wealthy  and  prosperous  agricultural  communitVj 
where  purchasers  for  valuable  farms  might  be  ex|)ected  to  be 
found.  In  point  of  fact,  there  was  not  a  bidder  from  that 
vicinity.  The  explanation  may  he  found  in  the  ehaiacter  of 
the  sheriff's  advertisement.  The  property  is  there  described 
as  one  lot  of  land  and  premises,  situate  in  the  township  of 
Independence,  containing  one  hundred  and  sixty  acres,  more 
or  less,  with  the  appurtenances.  Who  would  conjecture  that 
a  valuable  farm  was  to  be  sold  under  that  advertisement  ? 
Such  description  in  the  immediate  vicinity  of  the  lands  might 
have  been  understood.  But  what  information  did  it  convey 
to  strangers  ?  Was  it  an  advertisement  calculated  to  attract 
the  notice  of  buyers,  and  to  secure  an  advantageous  sale?  Is 
it  a  description  tiiat  any  sane  man  desirous  of  selling  a  farm, 
would  have  given  of  it? 

But  if  the  mode  of  advertisement  and  place  of  sale  are 
open  to  exception,  the  manner  of  conducting  the  sale  is  still 
more  so.  The  entire  farm  of  one  hundred  and  sixty-five 
acres,  worth,  as  the  evidence  shows,  from  $1)000  to  $10,000, 
encumbered  for  less  than  half  its  value,  is  put  up  to  sati.-ly 
a  claim  of  $80.41,  including  debt,  interest,  costs  and  sheriff's 
fees.  It  cannot  be  doubted  that  any  five  acres  of  the  land 
would  have  sold  for  enough  to  satisfy  the  demand.  The  fact 
that  the  whole  farm  was  offered  for  sale  to  pay  so  paltry  a 
Bum,  was  in  itself  calculated  to  excite  distrust.  No  honest 
purchaser  would  have  bid  with  an  expectation  of  buying. 
He  must  have  believed,  either  that  the  property  was  en- 
cumbered, or  that  there  was  a  defect  of  title,  or  the  plaintiff' 
being  a  sister  of  the  defendant  and  the  principal  bidder  his 
brother-in-law,  that  it  was  a  mere  formality  by  way  of  cover 
or  of  perfecting  a  title.     Not  only  so,  but  the  sherifl'  announces 


56  CASES  IN  CHANCERY. 

Cummins  v.  Little. 

to  the  bidders  tliat  if  $80.41  are  bid,  he  will  strike  the  prop- 
erty off;  if  not,  the  sale  will  be  adjourned.  "That  was  the 
instruction,  he  had  received  from  the  attorney,  and  that  is  the 
mode  in  which  tiie  sheriff,  in  the  exercise  of  his  discretion, 
discharges  his  trust  as  a  public  officer.  No  course  could  have 
been  adopted,  more  effectually  to  discourage  competition  and 
defeat  a  fair  sale. 

The  property  was  cried  for  ten  minutes,  and  was  then  struck 
off  to  the  defendant,  Daniel  S.  Ayres,  who  made,  in  reality, 
the  only  bid  at  the  price  which  the  sheriff  had  previously 
agreed  to  accept.  There  was  a  bid  of  $30,  made  by  a  person 
who  was  totally  irresponsible.  Other  bids  were  made  by  two 
persons,  who  were  concerned  with  Ayres  in  the  purchase,  and 
who,  it  is  evident,  were  not  bidding  against  him.  The  bids 
were  all  merely  colorable,  for  the  sheriff  had  previously  an- 
nounced that  he  would  not  sell  under  the  amount  due  on  his 
execution.  As  soon  as  that  sum  was  bid,  the  property  was 
struck  off. 

The  whole  conduct  of  the  sheriff,  in  the  advertisement  and 
sale  of  the  property,  was  a  gross  abuse  of  discretion.  So  far 
as  the  real  design  and  purpose  of  the  statute  were  concerned, 
it  might  as  well  have  been  sold  at  private  sale.  I  accept  it 
as  a  sound  and  clear  principle,  that  if  a  sheriff  abuses,  to  the 
detriment  of  subsequent  encumbrances  or  of  the  defendant  in 
execution,  the  discretion  vested  in  him  by  law  to  make  sale 
under  execution,  a  court  of  equity  will  grant  relief,  although 
there  has  been  a  formal  compliance  in  the  conduct  of  the  sale 
with  all  the  requirements  of  the  statute.  It  is  not  necessary 
that  there  should  be  actual  fraud  committed  or  meditated. 
The  abuse  of  discretion  in  the  execution  of  the  trust  is  a  con- 
structive fraud,  against  which  equity  will  relieve. 

In  arriving  at  this  conclusion,  no  fraud  or  improper  motive 
is  designed  to  be  imputed  to  the  sheriff.  The  evidence  does 
not  warrant  it.  The  fair  presumption,  I  think,  from  the 
evidence  is,  that  the  sheriff  had  no  idea  of  the  real  value  of 
the  interest  that  he  was  selling,  of  the  circumstances  which 


FEBRUARY  TERM,  1863.  57 

Cummins  v.  Little. 

surrounded  the  transaction,  or  of  the  effect  of  the  sale  upon 
the  rights  of  the  parties  interested.  Otherwise,  it  is  scarcely 
credible  that,  as  a  right  minded  man  and  upright  public  offi- 
cer, he  would  have  struck  off  the  property  as  he  did.  Nor 
has  any  fraudulent  motive  thus  far  been  imputed  to  the  pur- 
chaser. If  he  attended  the  sale  as  he  alleges,  and  purchased 
the  property  in  good  faith,  without  fraud  or  dissimulation, 
for  the  purpose  of  protecting  his  rights,  it  would  not  have 
justified  the  conduct  of  the  sheriff  or  sanctioned  the  validity 
of  the  sale. 

But  there  are  circumstances  in  the  case  tending  strongly 
to  establish  actual  fraud  in  the  conduct  of  the  sale.  It  is 
clear  that  Little,  the  defendant  in  execution,  intended  to 
have  been  at  the  sale  and  to  have  purchased  the  property,  or 
to  have  had  it  secured  for  his  benefit.  He  originally  employed 
another  party  to  bid  in  the  property  for  him.  Arrangements 
for  that  purpose  had  been  made.  Finding  that  Ayres,  his 
brother-in-law,  who  was  a  subsequent  encumbrancer,  in- 
tended to  be  at  the  sale  to  secure  his  own  interest,  he  entered 
into  negotiations  with  him,  which  continued  up  to  the  very 
day  before  the  sale.  What  the  precise  character  of  those 
negotiations  were  is  not  clear.  Nor  is.  it  material.  It  is 
perfectly  certain  that  the  defendant  intended  to  be  at  the 
sale.  His  deep  interest  in  the  property  rendered  it  certain 
he,  or  some  one  on  his  behalf,  would  be  present.  He  left 
home  at  an  early  hour  for  that  purpose.  He  arrived  at  the 
place  of  sale  shortly  after  the  property  was  struck  off.  He 
swears  that  he  told  the  purchaser  the  day  before,  that  he 
would  be  at  the  sale  by  half  past  one  o'clock.  Ayres  admits 
that  he  expected  Little  to  be  at  the  sale.  That  expectation 
must  have  been  derived  from  what  passed  between  them  the 
day  previous.  Ayres,  with  a  full  knowledge  of  this  fact,  tells 
the  sheriff  that  whether  he  buys  or  not,  depends  upon  how 
soon  he  sells,  not  upon  the  price  bid.  Why  so  ?  Unless  he 
knew  that  Little  was  coming,  and  that  he  would  either  have 
his  rights  protected  or  the  sale  adjourned.  It  was  the  first 
day  at  which  the  property  was  advertised,  and  an  adjourn- 


58  CASES  IN  CHANCERY. 

Cummins  v.  Little. 

nient  would  have  been  granted,  if  desired,  Tlie  property  ig 
put  up  and  cried  for  ten  minutes,  long  enough  to  have  sold  a 
lot  of  rubbish  or  a  broken  down  horse  ;  a  very  spirited  con}- 
petition  takes  place  between  the  purchaser  and  two  others,  for 
whom  the  purchaser  was  bidding  anct"  whose  interests  were 
the  same  as  his,  at  prices  which  they  knew  the  sheriff  would 
not  accept ;  the  price  named  by  the  sheriff  is  bid,  and  there- 
upon, iu  the  absence  of  the  defendant  in  execution  who  ar- 
rived soon  after,  in  the  absence  of  a  subsequent  encumbrancer 
who  was  kept  from  the  sale  by  information  that  it  would  not 
take  place,  a  farm  worth  $9000,  and  the  encumbered  value  of 
which  exceeded  $4000,  was  struck  off  for  $80.41. 

It  appears  to  me,  that  in  every  aspect  of  this  case  the  sale 
is  one  which  equity  will  not  tolerate.  It  was  conducted  in 
violation  of  the  whole  spirit  and  policy  of  the  law,  so  as  to 
defeat  the  just  claims  of  the  complainant,  and  greatly  to  pre- 
judice the  rights  of  the  defendant  in  execution.  The  evi- 
dence justifies  the  belief,  that  one  of  the  advertisements  was 
not  set  up  the  length  of  time  required  by  law,  and  that  the 
title  in  the  hands  of  the  purchaser  would  be  worthless  upon 
that  account.  But  this  ground  is  not  presented  by  the  bill, 
and  I  deem  it  unnecessary  to  discuss  the  evidence  upon  that 
point  or  to  lay  any  stress  upon  it. 

The  sale  by  the  sheriff  will  be  declared  illegal  and  inopera- 
tive, the  injunction  restraining  the  delivery  of  the  deed  made 
perpetual,  and  the  complainant's  mortgage  be  decreed  to  be 
a  valid  and  subsisting  encumbrance  upon  the  farm,  to  be 
paid  in  its  due  order  and  priority. 

Cited  in  Meyer  v.  Bishop,  12  C.  E.  Gr.  144 ;   Woodward  v.  Bullock,  Id, 
513 ;  Holmes  v.  Steele,  1  Stew.  174. 


FEBRUARY  TERM,  1863.  59 

Long's  adm'r  v.  Long. 


John  S.  Robbins,   administrator  of  Nancy  T.   Long,  vs. 
James  M.  Long.* 

1.  In  an  action  at  law  upon  a  penal  bond,  with  condition  for  the  payment 
of  money  only,  the  plaintiff  is  entitled  to  recover  the  full  amount  of  the 
penalty  as  a  debt,  and  the  excess  of  interest  beyond  the  penalty  in  the 
shape  of  damages  for  the  detention  of  the  debt. 

2.  Upon  a  bill  in  equity  for  the  recovery  of  a  bond  debt,  either  upon  the 
bond  itself,  or  upon  a  mortgage  given  to  secure  the  bond,  the  obligee  may 
recover  {he  full  amount  of  principal  and  interest  due  upon  the  bond,  though 
it  exceed  the  amount  of  the  penalty. 

The  bill  was  filed  to  foreclose  a  mortgage  for  $1000,  given 
by  the  defendant  to  Nancy  T.  Long.  The  cause  was  heard 
upon  the  bill,  answer  and  proofs;  and  an  order  of  reference 
was  made  to  ascertain  and  report  the  amount  due  upon  the 
mortgage,  and  what  part  of  the  mortgaged  premises  should 
be  sold.  The  master  reported  an  amount  due  greater  than 
the  penalty  of  the  bond,  and  advised  the  sale  of  a  part  of  the 
mortgaged  premises. 

To  the  report  of  the  master,  the  defendant  filed  the  follow- 
ing exceptions  : 

1.  The  amount  reported  due  is  larger  than  the  penalty  of 
the  bond. 

2.  If  the  property  be  sold  as  advised  by  the  master,  it  will 
be  sacrificed.     It  might  be  sold  to  greater  advantage. 

3.  The  master,  under  the  circumstances,  should  have  ad- 
vised the  sale  of  the  whole,  and  not  of  a  part,  of  the  mort- 
gaged premises. 

Hearing  on  exceptions  to  master's  report. 

Vrocm,  for  exceptant. 

Depue,  for  complainant,  contra. 

*  1  Mc  Carter  462. 


60  CASES  IN  CHANCERY. 

Long's  adiu'r  v.  Long. 

The  Chancellor.  The  only  exception  relied  upon  is, 
that  the  amount  reported  by  the  master  to  be  due  to  the  com- 
plainant, exceeds  the  penalty  of  the  bond.  It  is  insisted  that 
in  equity  there  can  be  no  recovery  upon  a  money  bond  beyond 
the  amount  of  the  penalty.  It  is  very  clear  that  for  a  long 
period  this  was  the  well  settled  rule  of  the  English  Court  of 
Chancery. 

It  was  treated  as  a  settled  point,  that  equity  will  not  re- 
lieve beyond  the  penalty  of  the  bond,  as  early  as  the  26 
Charles  2,  (1674),  in  Davis  v.  Cartis,  1  Chan.  Cas.  226. 
The  books  are  full  of  cases,  where  the  principle  is  applied  to 
bonds  with  special  condition,  as  to  official  bonds,  indemnity 
bonds,  and  bonds  for  the  performance  of  covenants,  where 
the  penalty  is  a  mere  security  for  the  payment  of  unliqui- 
dated damages.  But  the  cases  are  not,  as  has  been  some- 
times supposed,  confined  to  this  class  of  bonds,  but  extend 
as  well  to  mere  money  bonds.  Bromley  v.  Goodere,  1  Atk. 
75,  (1743);  Grosvenor  v.  Cook,  1  Dickens  305,  (1757);  Gib- 
son v.  Egevton,  Ibid.  408,  (1769) ;  Keithbij  v.  Keltleby,  2 
Dickens  514,  (1775);  Teio  v.  Winterton,  3'  Bro.  Ch.  B.  489, 
(1792);   Clarke  v.  Seton,  6  Vesey  411,  (1801.) 

In  Gibson  v.  Egerton,  the  master  allowed  the  penalties  of 
three  bonds,  which  was  less  than  the  amount  of  princi{)al  and 
interest  due  thereon.  An  exception  taken  to  the  master's 
report  on  this  ground  was  overruled.  The  Lord  Chancellor 
(Cowper)  saying,  he  was  so  clear,  that  he  wished  he  had  been 
Vvarranted  in  making  the  exceptant  pay  costs. 

In  Kelileby  v.  Ketlleby,  the  estate  was  amply  sufficient  to 
pay  all  the  debts.  Tliere  were  both  specialty  and  simple 
contract  creditors.  The  master  in  taking  the  account  al- 
lowed full  interest  upon  the  latter,  but  refused  to  allow  inter- 
est on  the  specialty  debts,  beyond  the  penalty  of  the  respect- 
ive bonds.  On  this  ground,  the  bond  creditors  excepted  to 
the  report.  Lord  Bathurst,  Chancellor,  overruled  the  excep- 
tions, reluctantly  as  he  said,  there  being  so  over  an  abundant 
fund,  but  said  that  he  was  tied  down  by  the  constant  and 
uniform  usage  of  the  court. 


FEBRUARY  TERM,  18G3.  61 

Long's  adm'r  v.  Long. 

There  are  cases  that  maintain  a  different  doctrine.  In 
Lord  Lonsdale  v.  Church,  2  T.  R.  388,  Mr.  Justice  Buller 
held,  tliat  at  law  interest,  in  the  shape  of  damai^es,  might 
be  recovered  beyond  the  penalty.  And  in  Knigld  v.  Mac- 
lean, 3  Bro.  Ch.  Ix.  496,  sitting  for  the  Chancellor,  he  sus- 
tained excej)tions  to  the  report  of  the  master,  on  the  ground 
that  he  had  not  allowed  interest  beyond  the  penalty  of  the 
bond.  But  this  decision  was  overruled  on  ajipeal  to  the 
Chancellor.  And  in  Clarke  v.  Selon,  Sir  William  Grant, 
the  master  of  the  rolls,  said,  the  uniform  rule  in  equity  is 
never  to  go  beyond  the  penalty.  It  must,  I  tliink,  be  ad- 
mitted as  a  general  rule  v/ell  settled  by  the  courts  at  West- 
minster, though  certainly  with  some  deviations,  that  in  an 
action  upon  a  penal  bond  there  can  be  no  recovery  beyond 
the  amount  of  the  penalty.  The  application  of  the  rule  has 
in  many  instances,  as  in  the  case  of  Kettkby  v.  Keitlehy, 
operated  most  unjustly,  in  placing  specialty  creditors  in  a 
much  worse  position  than  simple  contract  creditors.  Mr. 
Chitty  states  that,  with  respect  to  interest,  a  bill  of  exchange 
is  a  better  security  than  a  bond,  "  for  when  the  principal  and 
interest  on  a  bond  are  equal  to  the  amount  of  tiie  penalty 
the  interest  must  thenceforth  cease,  for  the  obligor  in  a  bond 
is  not  answerable  beyond  the  amount  of  the  penalty."  Chitty 
on  Bills  4. 

That  this  application  of  a  legal  principle  to  the  case  of  a 
money  bond  in  favor  of  the  obligor  is  alike  inequitable  and 
inconsistent  with  the  intention  of  the  parties,  is  too  clear  to 
admit  of  question.  And  the  attitude  of  the  English  Court 
of  Chancery  upon  this  question,  presents  one  of  the  most  re- 
markable anomalies  known  to  the  law.  It  acts  constantly 
upon  the  principle  of  giving  relief  beyond  the  penalty  of  the 
bond,  on  the  ground  that  equity  requires  it.  Thus  where 
the  amount  of  the  penalty  is  small,  as  compared  with  the 
value  of  the  subject  of  the  agreement,  the  court  has  no  diffi- 
culty in  decreeing  specific  performance  to  an  amount  greater 
than  that  of  the  penalty.     Fry  on  Spec.  Per/.,  §  70. 

Vol.  I.  D 


62  CASES  IN  CHANCERY. 

Long's  adm'r  v.  Long. 

So  if  the  mortgagor  comes  into  equity  for  relief  again?t 
the  penalty  at  law,  the  court  will  grant  relief,  only  on  hh 
paying  the  whole  amount  of  principal  and  interest  clue, 
though  it  exceed  the  penalty  of  the  bond  :  upon  the  princi- 
ple that  he  who  asks  equity  must  do  it.  Hugh  Audehjs 
case,  Hardress  136  ;  1  Eq.  Cos.  Ab.  91,  92;  Bac.  Ah.,  oili- 
gdtions,  A. 

So  equity  will  carry  the  debt  beyond  the  penalty,  where 
the  obligee  is  kept  out  of  his  money  by  injunction  or  is  pre- 
vented from  going  on  at  law.  Shoiv.  P.  C.  15;  Paltency  v. 
Warren,  6  Vesey  92. 

So  if  the  devisee  of  lands  charged  with  the  payment  of  a 
bond  debt,  neglect  to  pay  in  a  reasonable  time,  he  shall  pay 
interest,  though  it  exceed  the  penalty.  Anonymous,  1  Salk. 
154. 

So  where  an  advantage  is  made  of  the  money.  Lo7-d  Dun- 
sany  v.  Plunkeit,  2  Pro.  Pari.  C.  251.  Or  where  the  bond 
is  only  taken  as  collateral  security.  KbniKmc  v.  Blake,  2 
Pro.  Pari.  O.  333;  U  Vin.  Ab.  460,  ''Interest  "  E. 

The  sole  ground  upon  which  relief  has  been  denied  to  the 
obligee  of  a  money  bond  bevond  the  amount  of  the  penalty 
is,  that  at  law  the  bond  creditor  is  entitled  only  to  the  pen- 
alty of  the  bond,  and  that  where  tiie  creditor  comes  into 
equity  for  a  legal  demand,  equity  will  give  the  same  relief 
as  he  would  have  been  entitled  to  at  law.  Grosvenor  v.  Cook, 
1  Pickens  208  ;  Hale  v.  Thomas,  1  Vernon  349  ;  Machworth 
V.  Thomas,  5  Vesey  330. 

At  law  the  penalty  of  the  bond  has  always  been  considered 
the  debt.  Originally  the  obligor  at  law  was  required  to  pay 
the  penalty  as  the  debt,  and  could  only  be  relieved  in  equity 
by  paying  the  principal  and  interest  money  due.  Such  was 
originally  its  design,  and  such  to  this  day  it  is  in  fc)ra).  A  debt 
justly  due  to  be  paid,  the  obligation  to  be  void  only  upon  the 
performance  of  the  condition.  It  is  clear,  said  the  master  of 
the  rolls,  in  Clarke  v.  Seton,  6  Vesey  415,  tliat  both  at  law, 
and  in  equity  the  penalty  is  the  debt,  and  upon  this  very 
ground  it  is  urged  that  no  interest  can  be  recovered   beyond 


FEBRUARY  TERM,  1863.  63 

Long's  adtn'r  v.  Long. 

the  penalty.  But  if  it  be  a  debt,  and  if  that  debt  become 
due,  as  it  clearly  does  at  law  (in  form  at  least)  upon  the 
breach  of  the  condition,  and  judgment  may  be  entered  upon 
it,  why  may  not  interest  be  reckoned  either  upon  the  prin- 
cipal specified  in  the  condition,  or  upon  the  penalty,  to  an 
amount  equal  to  the  sum  due  upon  the  bond  ?  No  form  or 
principle  of  law  is  thereby  violated.  It  is  the  constant  prac- 
tice of  courts  of  law  to  recover  interest  beyond  the  penalty 
in  the  shape  of  damages,  and  yet  the  Court  of  Chancery  in 
England,  planting  itself  upon  the  rule  at  law,  refuses  to 
afford  relief,  which  is  both  equitable  and  in  accordance  with 
the  intention  of  the  parties. 

The  English  penal  bond  is  in  form,  an  anomaly.  The  bond 
is  not  given  for  the  actual  debt  but  for  the  penal  sum,  with 
condition  that  if  the  real  debt  and  interest  are  paid  at  ma- 
turity, the  bond  is  satisfied.  If  not  paid  at  maturity,  the 
bond  is  unsatisfied,  and  the  penal  sum  has  become  the  real 
debt.  So  the  courts  of  law  held.  Equity  said,  no  :  what- 
ever may  be  the  form  in  substance,  the  amount  of  the  obli- 
gation is  a  mere  penalty  whicii  the  obligee  shall  not  enforce. 
He  is  entitled  only  to  the  principal  and  interest  of  the  real 
debt.  After  a  long  struggle,  with  the  history  of  which  we 
are  all  "familiar,  equity  triumphed.  What  purports  to  be  in 
form  the  real  debt,  is  but  the  penalty.  The  form  is  retained, 
the  substance  is  changed.  But  if  the  form  of  the  bond  and 
the  form  of  the  remedy  upon  it  be  anomalous,  the  justice 
raeted  out  to  the  parties  is  still  more  so.  Equity  says  to  the 
obligee,  you  shall  not  have  the  sum  which  the  obligor  bound 
himself  to  pay,  and  which  he  has  acknowledged  to  be  due, 
because,  though  in  form  a  debt,  in  sul)stance  it  is  a  penalty. 
The  sura  specified  in  the  condition,  with  interest,  is  the  real 
debt.  But  the  moment  the  real  debt  exceeds  the  penalty, 
and  the  obligee  asks  for  the  amount  due,  the  answer  is,  the 
penalty  is  the  debt  and  you  can  have  no  more.  But  if  the 
j)enalty  is  the  debt,  and  the  real  debt  and  interest  exceeds 
the  penal  sum  so  that  it  is  no  longer  inequitable  to  demand 
it,  why  shall  not  the  obligee  have  interest  on  the  penalty? 


64  CASES  IN  CHANCERY. 

Long's  adm'r  v.  Long. 


Courts  of  law  say,  he  shall  have  it  in  the  form  of  damages 
for  the  detention  of  the  debt.  Shall  a  court  of  equity  hesitate 
to  give  it?  The  justice  of  the  claim,  and  the  anomalous  at- 
titude of  the  English  courts  upon  the  question,  is  thus  clearly 
presented  by  Mr.  Evans  in  his  Notes  to  Pothier.  2  Pothier 
on  Obi.  {Sd  Am.  ed.)  93. 

"  The  allowing  a  party  to  have  satisfaction  to  the  extent 
not  only  of  the  debt  which  constitutes  the  j)enalty,  but  also 
of  the  interest  on  that  penalty,  which  is  the  proper  damages 
for  its  detention,  appears  to  be  no  more  than  answering  the 
claims  of  ordinary  justice,  when  the  non-performance  of  the 
condition  is  attended  with  circumstances  that  render  the 
penalty,  without  such  interest,  an  imperfect  satisfaction  of  the 
primary  object  of  the  contract;  and  it  certainly  ought  to 
be  the  aim  of  every  tribunal  to  render  as  perfect  justice  as 
is  consistent  with  the  rules  of  law.  By  the  rules  of  law,  real 
damages  may  be  allowed  for  the  detention  of  a  debt.  Eor 
that,  the  case  of  Holdipp  and  Otway  is  a  decisive  authority. 
By  the  forms  of  law,  one  shilling  damages  is  always  awarded 
for  the  detention  of  the  penalty,  or  any  other  debt ;  and  these 
forms  will  be  best  rendered  subservient  to  their  substantial 
purposes  by  their  being  extended  so  far  as  may  be  necessary 
for  securing  the  original  obligation,  provided  they  are  not  ex- 
tended further  than  is  consistent  with  their  own  particular 
character.  And  this  is  particularly  the  case  with  respect  to 
bonds  for  securing  money,  when  the  principal  and  interest 
amount  to  more  than  the  formal  penalty.  Whilst  the  courts 
restrain  the  legal  operation  of  the  formal  instrument,  in  order 
that  it  may  not  be  carried  beyond  the  substantial  purpose,  on 
the  one  hand  ;  it  is  very  unequal  justice  not  to  allow  the  full 
extent  of  that  operation  when  it  is  necessary  to  enforce  such 
purpose,  on  the  other.  And  it  is  the  more  extraordinary, 
that  courts  of  equity,  which  in  other  cases  so  far  sacrifice  the 
form  to  the  substence  of  the  transaction  as  to  enforce  the 
specific  performance  of  an  agreement,  only  evidenced  by  its 
being  the  condition  of  a  penal  obligation,  without  allowing 
the  payment  of  the  penalty  to  be  substituted  for  the  perform- 


FEBRUARY  TERM,  1863.  65 

Long's  adm'r  v.  Long. 

ance  of  the  agreement,  should  so  completely  deviate  from  that 
practice  in  the  very  instance  of  all  others,  where  the  real  j)ur- 
poseof  the  agreement  is  most  indisputably  evident,  and  where 
the  measure  of  justice  is  with  most  facility  ascertained.  But 
so  are  the  precedents  ;  it  is  easier  to  follow  precedents  than  to 
investigate  principles,  and  there  is  often  a  timidity  in  devia- 
ting from  even  those  precedents  which  are  most  at  variance 
with  principles." 

The  weight  of  English  authorities,  as  has  been  said,  is  de- 
cided, that  at  law  as  well  as  in  equity,  there  can  be  no  recov- 
ery upon  a  penal  bond  beyond  the  amount  of  the  penalty. 

There  are,  however,  English  authorities  which  maintain 
the  right  of  the  obligee  to  recover  at  law  upon  a  money  bond, 
in  the  form  of  damages  for  the  detention  of  the  debt,  an 
amount  exceeding  the  penalty.  Lonsdale  v.  Church,  2  T. 
72.  388;  Buller's  N.  P.  178  ;  Hoklipp  v.  Ohoay,  2  Sawid. 
106  ;   Francis  v.  Wilson,  1  Ryan  &  3Ioody  105. 

The  American  authorities  very  generally,  if  not  uniformly, 
maintain  the  doctrine,  that  at  law  in  an  action  upon  a  penal 
bond,  interest  may  be  recovered  in  the  form  of  damages,  to 
an  amount  exceeding  the  penalty  of  the  bond.  Smcdes  v. 
HoughtaUng ,  3  Cables  R.  48  ;  Moffatt  v.  Barnes,  3  Caines 
R.  49,  note  a  ;  Cook  v.  Tousey,  3  Wend.  444 ;  Lyon  v.  Clark, 
4  Selden  148;  Peril  v.  Wallis,  2  Dallas  252;  Tennanes 
JEx'r  v.  Gra.y,  5  Munford  494  ;  Moss  v.  Wood,  R.  M.  Charl- 
ton 42  ;  Goldhawh  v.  Duane,  2  Wash.  C.  C.  R.  323 ;  Sedg- 
wick on  Darn.,  {Sd  ed.)  446  ;  2  Greenleaf's  Ev.,  §  263. 

In  the  case  of  Goldhawk  v.  Duane,  Mr.  Justice  Washing- 
ton stated  that  in  the  opinion  of  the  court,  nothing  could  be 
recovered  beyond  the  penalty,  but  as  the  plaintiff's  counsel 
were  confident  that  the  law  was  otherwise,  the  court  left  it  to 
the  jury  to  fin<l  interest  in  the  name  of  damages,  with  a  view 
to  the  discussion  of  the  point,  upon  a  motion  for  a  new  trial. 
The  jury  found  accordingly,  and  it  does  not  appear  that  the 
verdict  was  ever  disturbed. 

On  bonds  for  the  performance  of  covenants,  or  with  con- 
dition other  than  for  the  payment  of  money,  the  recovery  is 


66  CASES  IN  CHANCERY. 


Long's  adm'r  v.  Long. 


usually  limited  strictly  by  the  amount  of"  the  penalty.  State 
V.  Ford^  5  BlacJcf.  392  ;  Lawrence  v.  United  States,  2  3Ic- 
JLean  581.  But  even  in  these  eases,  the  American  courts 
have  repeatedly  held  that  the  penalty  becomes  forfeited  uj)on 
the  first  breach,  and  if  the  damages  be  not  then  satisfied  and 
they  exceed  the  penalty,  interest  may  be  allowed  upon  the 
penalty  from  the  time  of  the  breach.  Carter  v.  Carter,  4 
Day  36 ;  Harris  v.  Clap,  1  3Iass.  308  ;  Hughes  v.  Wickliffe, 
11  B.  Monroe  202;  Carter  v.  Thorn,  18  Ibid.  613;  United 
States  V.  Arnold,  1  Gall.  360.  Or  from  the  time  the  debt  is 
demanded.  Warner  v.  Thurlo,  15  Mass.  154;  State  v.  Way- 
man,  2  Gill.  &  John.  254,  279 ;  Wolcott  v.  Harris,  1  Rhode 
I.  404. 

In  the  recent  case  of  Brainard  v.  Jones,  18  New  York 
Rep.  35,  it  was  held  that  the  recovery  against  a  surety  in  a 
bond  for  the  payment  of  money  is  not  limited  to  the  j)enalty, 
but  may  exceed  it,  so  far  as  necessary  to  include  interest 
from  the  time  of  the  breach.  And  the  legal  ground  of  the 
recovery  is  clearly  stated  by  Mr.  Justice  Comstock  in  deliver- 
ing the  opinion  of  the  court.  "  Whether,"  say  the  court,  "a 
surety  at  the  time  of  his  default  can  be  held  beyond  the  penalty 
of  his  bond,  is  a  question  on  the  interpretation  and  eflect  of 
his  contract.  Whether  interest  can  be  comj)uted  after  his 
default,  where  the  effect  will  be  thus  to  increase  his  liability, 
is  a  question  of  compensation  for  the  breach  of  his  contract." 
And  it  was  held  that,  so  far  as  interest  is  payable  by  the  terms 
of  the  contract  and  until  default  made,  it  is  limited  by  the 
penalty;  but  that  after  the  breach,  interest  is  recoverable,  not 
on  the  ground  of  contract,  but  as  damages  which  the  law  gives 
for  its  violation. 

The  question  is  in  no  wise  affected  by  the  provisions  of 
our  statute  concerning  obligations.  Nix.  Dig.  567.  The 
5ih,  6th,  and  7th  sections  of  the  act,  which  are  transcripts 
from  statutes  8  and  9,  Will.  3,  apply  only  to  bonds  with  con- 
dition "  other  than  for  the  payment  of  money."  Tiie  9th  and 
10th  sections,  which  are  substantially  copies  from  statutes  4 
and  5  Ann,  were  designed  to  afford  the  relief  against  the 


FEBRUARY  TERM,  1863.  67 

Long's  adm'r  v.  Long. 

penalty,  wliicli  the  obligor  might  previously  have  obtained  in 
equity  by  paying  the  principal  and  interest  due  by  the  con- 
dition. He  can  neither,  by  the  terras  of  the  act,  discharge 
the  bond,  nor  plead  the  payment  in  bar,  except  by  paying  tin  i 
full  amount  due  for  principal  and  interest  according  to  th( 
condition. 

I  think  both  upon  principle  and  upon  authority,  the  plain- 
tiff, in  an  action  upon  a  penal  bond  with  condition  for  th€ 
payment  of  money  only,  is  entitled  to  recover  the  full  amount 
of  the  penalty  as  a  debt,  and  the  excess  of  interest  beyond 
the  penalty,  in  the  shape  of  damages  for  the  detention  of  the 
debt.  This  being  the  relief  to  which  the  plaintiff  is  entitled 
at  law,  it  is  clear  that  the  complainant  in  equity  is  entitled 
to  at  least  as  full  relief.  The  only  difficulty,  as  we  have 
seen,  in  the  obligee's  recovering  in  equity  the  full  amount  of 
principal  and  interest  due  upon  the  bond,  has  been  that  the 
plaintiff  coming  into  equity  to  recover  a  legal  demand,  can 
recover  no  more  than  he  would  do  at  law.  Independently, 
therefore,  of  all  precedent  or  authority  directly  upon  the 
question,  I  should  hold  that  upon  a  bill  in  this  court  for  the 
recovery  of  a  bond  debt,  either  upon  the  bond  itself  or  a 
mortgage  given  to  secure  the  bond,  the  complainant  may 
recover  the  full  amount  of  principal  and  interest  due  upon  the 
bond,  though  it  exceed  the  amount  of  the  peualty.  And  this, 
upon  the  ground  that  it  is  a  debt  justly  due,  that  it  is  in  ac- 
cordance with  the  intention  of  the  parties,  and  that  it  vio- 
lates no  principle  of  law  or  equity.  Equity  will  disregard 
ihe  form  in  which  the  remedy  is  obtained  and  look  alone  to 
the  substance  of  the  transaction. 

But  whatever  doubt  may  exist  touc^hlng  the  right  to  re- 
cover either  at  law  or  in  equity,  beyond  the  penalty  of  the 
bond,  where  the  claim  is  founded  upon  the  bond  itself,  there 
is  no  difiiculty  in  the  way  of  a  recovery  of  the  full  amount 
due  fur  principal  and  interest  where  the  suit  is  fouiuled,  not 
upon  the  bond,  but  upon  a  mortgage,  or  otlier  security. 

In  Clark  v.  Lord  Abingdon,  17  Ve^ey  106,  the  master  of 
the  rulls  said  :  "  In  this  case  the  creditor  has  two  securities  ; 


68  CASES  IN  CHANCERY. 


Long's  adm'r  v.  Long 


one  by  bond,  the  other  by  mortgage.  If  he  sues  upon  the 
former  he  cannot  have  interest  beyond  the  penalty,  but  the 
mortgage  is  to  secure  payment  not  of  the  bond,  but  of  the 
sum  for  which  the  bond  was  given,  together  with  all  interest 
that  may  grow  due  thereon.  The  same  sum  is  therefore 
secured  by  different  instruments,  by  a  penalty,  and  by  a 
specific  lien.  The  creditor  may  resort  to  either;  and  if  he 
resorts  to  the  mortgage,  the  penalty  is  out  of  the  question. 
The  mortgage  is  not  for  that."  The  master  had  disallowed 
the  interest  beyond  the  penalty  ;  and  it  was  urged  by  lead- 
ing counsel  in  that  case,  as  in  this,  that  the  bond  was  the 
principal  and  primary  security.  The  mortgage  being  not  a 
new  contract,  but  merely  secondary  and  collateral  to  the 
bond,  could  not  enlarge  the  debt,  or  in  any  way  affect  the 
original  rights.  This  view  was  not  sustained.  I  confess  it  ap- 
pears to  me  there  is. much  force  in  this  argument,  if  the  pen- 
alty is  to  be  regarded  not  as  a  mere  security  for  performance, 
but  as  a  sura  certain,  in  the  nature  of  stipulated  damages,  to 
be  paid  and  received  in  lieu  of  performance  of  the  condition 
of  the  bond. 

The  peculiarity  of  the  view  of  the  English  courts  of  equity 
is  this,  that  so  long  as  the  principal  and  interest  of  the  debt 
is  less  than  the  penalty,  the  penalty  is  regarded  strictly  as 
such,  and  the  sum  actually  due  can  alone  be  recovered  ;  but 
that  it  fixes  the  utmost  amount  which  the  obligor  agrees  to 
pay  for  the  violation  of  his  contract,  and  therefore  defines 
the  limit,  beyond  which  the  obligee  cannot  enforce  his  claim. 
Looking  at  the  question  as  a  mere  question  of  equity,  it  will 
be  found  very  ditficult  to  assign  a  satisfactory  reason  why  the 
obligee  should  be  permitted  to  recover  a  larger  amount  upon 
the  mortgage,  which  is  a  mere  security  for  the  bond,  than  he 
is  permitted  to  recover  upon  the  bond  itself. 

In  Pitts  V.  TUden,  2  llass.  118,  the  plaintiff  moved  for 
judgment,  the  amount  of  the  principal  and  interest  exceeding 
the  penalty  of  the  bond.  The  defendants  opposed  entering 
judgment  for  more  than  the  penalty  of  the  bond.  The  court 
said,  this  -had  never  been  questioned,  except   in  case  of  « 


FEBRUARY  TERM,  1863.  69 

Long's  adm'r  v.  Long. 

suretv.  It  has  been  ruled  so  often  in  the  case  of  the  princi- 
pal, that  the  point  cannot  now  be  brought  into  question.  It 
rests  on  principles  of  law  as  well  as  of  equity. 

In  Baker  v.  Morris^  Adm'r,  10  Leigh  284,  upon  a  bill  ex- 
hibited in  chancery  for  the  recovery  of  a  debt  due  upon  bonds 
given  by  the  defendant,  the  court  decreed  full  interest  upon 
the  bonds  exceeding  the  amount  of  the  penalty. 

In  Tazewell's  Ex'r  v.  Saunder's  Ex'r,  13  Grattan  354,  it 
was  decided  by  the  Court  of  Appeals  of  Virginia,  upon  a  full 
review  of  the  authorities,  that  a  court  of  equity  will  decree 
interest  upon  a  bond  or  judgment,  beyond  the  penalty. 

This  whole  subject  was  fully  considered  and  decided  by 
Chancellor  Walworth  in  3Iower  v.  Kip,  6  Paige  88,  where  it 
was  held  that  upon  a  money  bond  the  obligor  was  both  legally 
and  equitably  liable  for  the  whole  amount  of  the  principal 
and  interest  secured  by  the  condition  of  the  bond,  though  it 
exceeded  the  amount  of  the  penalty  ;  and  where  such  debt  is 
secured  by  mortgage,  the  mortgagee  has  a  lien  upon  the  land 
for  the  whole  amount  of  the  principal  and  interest,  according 
to  the  condition  of  the  mortgage,  though  it  exceeds  the  penalty 
of  the  bond. 

In  the  somewhat  later  case  of  Cruger  v.  Daniel,  1  McMul- 
lan's  Eq.  157,  the  Court  of  Appeals  of  South  Carolina, 
after  a  very  elaborate  argument,  decided  upon  the  authority 
of  the  English  cases,  that  a  mortgagee  in  equity  cannot 
recover  beyond  the  ])enalty  of  the  bond  which  the  mortgage 
is  given  to  secure.  "  In  the  language  of  the  cases,"  say  tlie 
court,  "  the  penalty  is  the  entire  debt,  and  the  mortgage  is 
only  intended  to  secure  that,  and  refers  to  the  bond.  On 
what  principle  would  you  give  more  than  the  debt?"  As  to 
the  principal  debtor  in  a  money  bond,  said  Chancellor  Wal- 
worth, in  delivering  his  opinion  in  3Ioxcer  v.  Kip,  "  the 
amount  secured  by  the  condition  of  the  bond  is  the  real  debt, 
which  he  is  both  legally  and  equitably  bound  to  pay.  And 
if  he  neglects  to  pay  the  money  when  it  becomes  due,  there 
is  no  rule  of  justice  or  common  sense  which  should  excuse 
him  from  the  payment  of  the  whole  amount  of  the  principal 


70  CASES  IN  CHANCERY. 

Stratton  v.  Dialogue. 

and  interest,  whether  it  be  more  or  less  tlian  the  formal  pen- 
alty of  the  bond."  In  this  view  I  fully  concur.  For  every 
other  practical  purpose,  both  at  law  and  in  equity,  for  more 
than  two  hundred  years,  the  princlj)al  specified  in  the  condi- 
tion of  the  bond,  with  interest,  has  been  regarded  as  the  real 
debt,  and  the  penalty  the  mere  form  by  which  the  debt  is  se- 
cured. Why  should  it  be  regarded  otherwise  for  the  sole 
purpose  of  defeating  the  obligee  of  his  just  claim  ?  It  is 
resting  in  a  mere  technicality  in  utter  disregard  of  the  real 
nature  of  the  transaction,  the  intention  of  the  parties,  and  the 
ends  of  justice. 

The  exception  should  be  overruled. 

Cited  in  Hoagland  v,  Seyur,  9  Vr.  238. 


Charles  P.  Stratton,  receiver  of  the  Camden  Iron  Mau.. 
facturing  Company,  vs.  John  II.  Dialogue. 

1.  Where  real  estate  is  in  fact  paid  for  with  the  funds  of  a  company, 
there  is  clearly  s.resu,ltmg  trust  in  favor  of  the  company,  although  the  deed 
therefor  is  made  absolute  to  a  third  party,  and  purports  upon  its  face  to  be 
for  his  own  use  and  benefit. 

2.  A  party  so  taking  the  title,  becomes  a  trustee  for  the  creditors  and 
Btockholders,  and  the  trust  will  be  enforced  for  their  benefit  ut  the  instance 
of  the  receiver.  

J.  Wilson  and  Carpenter,  for  receiver. 

Where  one  buys  land  in  favor  of  another  there  is  a  result- 
ing trust.     2  Story's  Eq.,  §  1201. 

Specific  performance  is  not  called  for,  but  merely  execution 
of  timst. 

Beasley,  for  defendant,  cited  1  Lead.  Cas.  in  Eq.  274  ; 
Lloyd  V.  Spillet,  2  Atk.  150 ;  Smith  v.  Burnham,  3  Sumn. 
462 ;  2  Sugden  on  Vendors  {7th  Am.  ed.)  396  ;  Gilbert  v. 
Trustees  of  East  Newark,  1  Beas.  1 80  ;  Morgan^ s  heirs  v. 
Morgan,  2  Wheat.  290  j  Fry  on  Spec.  Perf.,  §  608  ;   7  Cowcn 


FEBRUARY  TERM,  1863.  71 

Stratton  v.  Dialogue. 

551  ;  Angell  &  Ames  on  Corp.,  §  150;  Fry  on  Speo.  Perf., 
§  314  ;  Trenton  Mutual  Life  and  Fire  Ins.  Co.  v.  MoKelvjuy, 
1  Be  as.  133. 

The  Ciiancelloe.  The  bill  charges  that  while  the  Cam- 
den Iron  Manufacturing  Company  were  in  operation  in  the 
year  1858,  Henry  Allen  conveyed  to  John  H.  Dialogue,  the 
defendant,  sundry  lots  of  land  and  real  eslate  in  the  city  of 
Camden,  in  trust  for  the  company.  Tliat  Dialogue  claims 
title  to  the  land  as  his  own,  and  refuses  to  convey  the  laud 
to  the  receiver  or  account  for  its  value.  That  he  has  aliened 
a  part  of  the  land,  and  has  exchanged  portions  of  it  with 
Charles  Kaighn  for  other  lands  conveyed  to  him  by  Kaighn. 
The  bill  prays  a  discovery,  an  account  of  the  moneys  re- 
ceived for  the  sale  of  the  land  and  for  the  rents  and  profits 
thereof,  a  discovery  of  the  portion  of  the  lands  still  held  by 
the  defendant,  and  a  conveyance  thereof  to  the  cotn|)lainant 
for  the  benefit  of  the  creditors  and  stockholders  of  the  com 
pany. 

The  answer  admits  the  conveyance  of  the  lands  from  Allen 
to  the  defendant,  but  alleges  that  it  was  in  j)ursuance  of  a 
private  contract  between  Allen  and  Dialogue,  that  it  was  not 
paid  for  by  the  company,  nor  held  in  trust  for  them. 

The  material  question  in  the  case  is,  whether  the  land  was 
in  fact  paid  for  with  the  funds  of  the  company.  If  it  was, 
there  is  clearly  a  resulting  trust  in  favor  of  the  company, 
although  the  deed  is  made  absolute  to  Dialogue,  and  pnrpoits 
upon  its  face  to  be  for  his  own  use  and  benefit.  One  of  the 
deeds  from  Allen  bears  date  on  the  sixteenth  of  April,  and 
the  other  two  on  the  twenty-second  of  May,  eighteen  hun- 
dred and  fifty-eight.  Cotemporaneously  with  the  delivery 
of  the  title,  there  was  received  by  Allen  as  a  consideration 
for  the  conveyances,  scrip  for  one  hundred  and  forty-seven 
shares  of  the  capital  stock  of  the  company,  representing  at 
its  par  value  of  $100  per  share,  $14,700.  This  scrip,  as  ap- 
pears upon  the  stock  book  of  the  company  and  upon  the  face 
of  the  scrip  itself,   was  an   original    issue  of  stock  directly 


72  CASES  IN  CHANCERY. 

Stratton  v.  Dialogue. 

from  the  company  to  Allen,  the  grantor.  Allen  testifies  that 
he  was  originally  applied  to  by  the  president  of  the  company 
to  take  stock.  Tiiat  he  offered  real  estate  in  ])ayment,  a 
statemoit  of  which  he  furnished  to  be  laid  before  the  board, 
and  he  was  afterwards  informed  that  his  offer  was  accepted. 
The  offer  was  made  in  the  name  of  the  company.  In  all  his 
negotiations  he  understood  that  he  was  dealing  with  the 
officers  for  the  benefit  of  the  company.  His  negotiations 
were  with  two  of  the  directors,  by  whom,  it  is  evident,  the 
affairs  of  the  company  were  exclusively  managed,  and  who 
owned  the  great  mass  of  the  stock.  He  understood  that  he 
was  receiving  the  stock  from  the  company,  not  the  stock  of 
an  individual;  and  he  never  heard  it  intimated  that  the  land 
was  claimed  by  Dialogue,  until  shortly  before  the  company 
ceased  operations.  Charles  Kaighn,  who  was  a  director  and 
secretary  of  the  company  at  the  date  of  the  transfer,  testifies 
that  the  expediency  of  taking  the  houses  and  lots  of  Allen, 
in  exchange  for  stock,  was  discussed  by  the  directors.  It 
was  acquiesced  in,  as  putting  it  in  the  power  of  the  company 
to  erect  their  works.  It  was  understood  that  they  could 
trade  off  the  houses  and  lots  to  those  who  would  do  the  work. 
Tiiey  found  it  impossible  to  raise  money  to  go  on  with  the 
work?.  Easby  and  Dialogue  both  said  we  could  get  the 
works  erected  by  trade  in  real  estate,  when  parties  would 
not  take  stock  of  the  company  in  trade.  One  of  the  reasons 
assigned  by  Allen,  why  the  deed  was  made  to  Dialogue,  was 
that  he  was  superintendent  of  the  company's  works,  and 
could  therefore  more  readily  dispose  of  the  lots  in  exchange 
for  the  labor  of  the  workmen.  Kaighn  further  testifies  that 
the  board  agreed  to  take  the  property  of  Allen.  '•  We  con- 
gratulated each  other  in  having  a  man  of  Allen's  means  in 
the  board.  As  to  Allen's  taking  Dialogue's  stock,  I  never 
understood  that  at  all.  I  understood  that  the  exchange  of 
land  afterwards  made  by  me  with  Dialogue  for  a  part  of  these 
lots,  and  the  conveyances  I  made  to  Dialogue,  was  for  the 
benefit  of  the  comi)any.  This  matter  of  exchange  was  dis- 
cussed between   Easby,  Dialogue  and   myself,  who  were  theu 


FEBRUARY  TERM,  1863.  73 

Stratton  v.  Dialogue. 

tlie  only  directors.  I  was  secretary  when  tlie  certificates  of 
the  stock  of  the  company  were  issued  to  Henry  Allen.  I  did 
not  at  that  time  know  of  other  stock  being  surrendered  up 
and  cancelled.  I  supposed  it  to  be  an  issue  of  new  stock." 
The  real  estate  was  professedly  dealt  with  by  Allen  as  the 
property  of  the  company.  This  appears  both  by  his  answer, 
and  by  the  evidence.  Franklin  Eyre,  who  built  a  wharf  for 
the  company,  testifies  that  Dialogue,  as  president  of  the  com- 
pany, and  with  whom  he  contracted,  offered  to  pay  him  for 
the  work  in  real  estate.  "He  showed  me,"  the  witness  says, 
"the  lots,  represented  to  me  that  the  company  got  them  of 
Allen,  told  me  what  the  company  paid  Allen  for  it.  To  the 
best  of  my  recollection,  he  said  the  company  had  paid  Allen 
$15,000  of  stock.  I  am  not  certain  as  to  the  amount  of  the 
stock.  I  am  pretty  clear  that  Dialogue  told  me  they  had 
given  Allen  stock  for  the  company."  Easby  himself,  the  presi- 
dent of  the  con)j)any,  and  the  witness  relied  uj)on  to  support 
the  averment  of  the  answer,  that  Dialogue  paid  for  the  land 
with  his  own  stock,  testifies,  that  it  was  his  understanding 
that  Dialogue  was  to  hold  the  property  in  trust  for  the  com- 
pany. 

In  support  of  the  allegation  that  the  stock  issued  to  Allen 
was  a  re-issue  of  Dialogue's  stock,  four  certificates  of  stock 
are  exhibited,  amounting  together  to  150  shares,  which  pur- 
port to  have  been  issued  to  Dialogue  on  the  eighth  of  July, 
1856.  These  certificates  are  marked  cancelled.  Attached 
to  them  is  a  letter  of  attorney  in  blank,  executed  by  Dialogue, 
authorizing  the  attorney  to  sell,  assign  and  transfer  unto 
Plenry  Allen,  or  any  other  person  or  persons,  1-17  shares  in 
the  capital  stock  of  the  company. 

The  answer  to  this  evidence  is,  that  the  by-laws  of  the 
company  require  that  transfers  of  stock  shall  be  made  upon 
the  books  of  the  company,  in  person,  or  by  power  of  attorney, 
in  presence  of  the  president  or  secretary.  No  such  transfer 
was  ever  made.  The  secretary  swears  that  he  nerer  heard  of 
any  transfer  of  stock  by  Dialogue.  There  is  no  pretence  that 
these  certificates  of  Dialoirne's  were  ever  surrendered  to  the 


74  CASES  IN  CHANCERY. 


Stratton  v.  Dialogue, 


company.  When  tliey  were  cancelled  does  not  appear.  There 
is  no  evidence  when  the  letter  of  attorney  was  execnted,  or 
that  it  was  ever  delivered  to  Allen.  The  evidence  is  express, 
that  it  was  not  delivered  ;  that  he  never  saw,  or  heard  of  it. 
How  then  can  it  be  evidence  of  a  transfer  of  stock  ?  The 
whole  transaction  bears  npon  its  face  the  strongest  evidence 
of  having  been  fraudulently  manufactured.  At  any  rate  it  is 
no  evidence  whatever  of  any  transfer  of  stock. 

There  is  written  in  the  stock  book,  in  the  margin  of  the 
original  certificates  issued  to  Dialogue,  the  words,  *'  trans- 
ferred to  Henry  Allen,  and  certificate  issued,"  without  date 
or  signature.  Easby  testifies  that  it  was  made  by  him  at 
the  time  the  stock  was  transferred  to  Allen,  and  that  it  was 
Dialoo-ue's  stock  that  was  transferred.  As  has  been  said  al- 
ready,  there  was  no  transfer  of  Dialogue's  stock,  and  this 
evidence  is  directly  in  the  face  of  the  evidence  in  the  cause. 
There  is  no  intimation  of  any  such  transaction  upon  the 
minutes  of  the  company,  or  upon  the  face  of  the  stock  book, 
except  what  is  furnished  by  Easby  himself.  The  value  of 
this  evidence  will  be  best  understood  by  adverting  briefly 
to  the  history  of  the  company,  and  the  attitude  of  Easby  and 
Dialogue  in  regard  to  it. 

The  company  was  incorporated  on  the  seventh  of  Febru- 
ary, 1854,  with  a  capital  of  $100,000,  divided  into  shares  of 
$100  each.  In  the  year  1854,  an  attempt  was  made  to 
organize  the  company  by  the  corporators  named  in  the 
charter.  Subscri{)tiou  books  were  opened,  subscriptions 
obtained,  and  a  board  of  directors  elected.  It  does  not 
appear  that  one  dollar,  was  paid  upon  the  subscriptions  thus 
made.  The  evidence  is,  that  there  was  not.  We  have  the 
history  of  the  organization  of  the  company  from  the  minutes, 
and  from  the  lips  of  Easby  himself.  Before  the  company 
was  formed,  Easby  and  Dialogue  had  been  in  business  to- 
gether under  the  firm  of  Easby  &  Dialogue,  carrying  on 
■  machine  business,  manufacturing  steam  engines,  boilers,  &c. 
None  of  the  stock  was  sold  for  cash.  Both  Dialogue  and 
Easby  paid  for  their  stock  in  land  and  materials,  under  the 
provisions  of  the  charter. 


FEBRUARY  TERM,  1863.  75 

Stratton  v.  Dialogue. 

The  mode  in  which  it  was  done,  and  the  amatint  paid,  ap- 
pears from  tlie  minutes  of  a  meeting  of  the  directors  held  on 
the  sixteenth  of  July,  1855.  There  were  five  directors,  one 
of  wliom  appears  never  to  have  acted.  Three  were  jiresent 
at  the  meeting,  William  Easby,  John  tl.  Dialogue  and  P.  C. 
Brinck.  Brinck  purports,  upon  the  books  of  the  company, 
to  have  subsequently  held  one  share  of  stock.  At  the 
date  of  the  meeting,  it  does  not  a|)pear  that  he  had  any  inter- 
est whatever  in  the  company.  The  following  proceedings  of 
that  meeting  are  recorded  : 

"  A  schedule  of  property,  consisting  of  machinery,  tools, 
fixtures,  stock,  engines,  boilers,  patent  right  for  Babbett  metal, 
&c. ;  also,  good  will  of  the  business  of  Easby  &  Dialogue  as 
per  inventory,  amounting  to  $54,000,  was  presented  to  the 
board,  and  accepted  as  stock,  materials,  property,  &c.,"  as  per 
section  nine  of  the  charter  of  the  company.  Also,  the  lot  of 
ground  and  buildings  situate  southwest  corner  of  Second  street 
and  Stevens  street,  city  of  Camden,  N.  J.,  at  a  valuation  of 
$16,000,  was  also  accepted.  The  above  amounts,  say  $54,- 
000  and  $16,000,  were  in  payment  for  subscriptions  to  the 
capital  stock  of  this,  the  Camden  Iron  Manufacturing  Com- 
pany. 

The  secretary  was  directed  to  have  the  deed  for  the  above 
named  real  estate,  conveyed  by  William  Easby  and  wife,  re- 
corded ;  also,  to  have  an  affidavit  by  two  or  more  directors 
made  and  filed  with  the  secretary  of  state,  in  accordance 
•with  section  third  of  the  charter,  which  requires  that  when- 
ever §100,000  shall  have  been  subscribed  and  at  least  $50,- 
000  paid  in,  and  an  affidavit  thereof  made  by  two  directors, 
and  filed  in  the  office  of  secretary  of  state,  it  shall  be  lawful 
for  the  said  corporation  to  commence  and  carry  on  its  busi- 
ness under  the  provisions  of  the  act. 

At  this  time  it  is  clear  that  Easby  and  Dialogue  were  the 
sole  owners  of  the  concern.  They  simply  turned  over  their 
land,  machinery,  patent  right,  and  good  will  of  the  business 
to  the  company,  at  a  valuation  accepted  by  themselves,  and 
remained,  as  before,  the  owners  of  the  concern.  As  yet  no 
certificate  of  stock  appears  to  have  been  issued. 


76  CASES  IN  CHANCERY. 


Stratton  v.  Dialogue. 


In  the  year  1856,  Charles  Kaighn's  property  at  Kaighn'a 
Point  was  purchased,  and  he  becanae  a  stockholder  and  di- 
rector. The  mode  in  which  he  became  a  stockliolder  is 
worth  noting,  as  it  may  tend  to  throw  light  npon  the  trans- 
action with  Allen.  On  the  third  of  March,  1856,  at  a  meet- 
ing of  the  directors,  at  which  three  were  present,  of  whom 
Easby  and  Dialogue  were  two,  the  president,  Easby,  re- 
ported that  he  couid  purchase  the  Kaighn's  Point  property 
for  $10,500;  $8000  in  cash,  and  ^2500  in  the  stock  of  the 
company  at  par.  On  motion  of  Dialogue,  the  report  was 
referred  to  the  stockholders  fur  action.  At  a  special  meet- 
ing of  the  stockholders,  held  on  the  thirtieth  of  April,  the 
president,  Easby,  reported  that  the  projierty  could  be  pur- 
chased for  $2000  in  cash  and  $6000  in  the  stock  of  the  com- 
pany, ])rovided  the  company  put  improvements  on  it  to  the 
value  of  $10,000  within  three  years  ;  when,  on  motion  of 
Dialogue,  it  was  resolved  that  the  report  of  the  president  be 
accepted,  and  that  he  be  authorized  to  conclude  the  purchase 
upon  the  terms  stated  in  the  report,  and  have  the  deed  made 
and  executed  to  the  Camden  Iron  Manufacturing  Company 
forthwith.  On  the  next  day,  the  first  of  May,  certificates 
for  sixty  shares  of  stock,  which  at  par  would  be  equal  to 
$6000,  were  issued  to,  and  received  by  Kaighn.  But  no 
deed  appears  to  have  been  executed  in  pursuance  of'  the  in- 
structions of  the  stockholders.  Easby  aj)pears  to  have  taken 
the  title  to  himself.  At  a  meeting  of  the  directors  on  the 
third  of  April,  1858,  at  which  were  present  Easby,  Dialogue 
and  Kaighn,  it  was  resolved  that  William  Easby  be  requested 
to  state  upon  what  terms  iie  will  convey  to  the  company  the 
property  at  Kaighn's  Point.  At  a  meeting  on  the  twenty- 
Becond  of  May,  the  same  three  directors  being  present,  it  was 
resolved  that  "  a  s{)ecial  meeting  of  the  stockholders  be  called 
to  take  into  consideration  the  purchase  of  the  wharf  property 
at  Kaighn's  Point,  and  the  erection  of  the  works  thei'eon." 
On  the  first  of  June,  1858,  the  stockholders  meeting  was  held, 
to  take  into  consideration  the  purchase  of  the  Kaighn's  Point 
property.      Kaighn,    Dialogue    and    Easby    were    present. 


FEBRUARY  TERM,  18G3.  77 

Stratton  v.  Dialogue. 

Kaighn  was  president,  Dialogue  secretary,  and  wc  know  that 
Easby  was  present,  for  the  minutes  gravely  state  that  stock- 
holders were  present,  representing  600  shares  of  stock.  Easby, 
at  that  time,  we  know,  hekl  over  500  shares  of  the  stock,  and 
must  therefore  have  been  one. 

It  was  resolved  that  the  board  of  directors  be  authorized 
and  empowered  to  i)archase  of  William  Easby,  the  wharf 
and  property  at  Kaighn's  Point,  formerly  belonging  to  Charles 
Kaighn,  upon  such  terms  as  may  be  deemed  by  them  for  tlie 
best  interests  of  the  comi)any.  On  the  fifth  of  June,  Easby 
presented  his  resignation  as  president  and  director  Dia- 
logue was  elected  president,  and  Allen,  a  director  in  his  place. 
At  a  meeting  of  the  directors  on  the  tenth  of  June,  the  presi- 
dent (Dialogue)  produced  to  the  board  the  unexecuted  deed 
of  Easby  to  tiie  company  for  the  property  at  Kaighn's  Point, 
also  the  bond  and  mortgage  proposed  to  be  given  to  Easby, 
to  secure  $20,000  of  the  purchase  money  thereof,  as  proposed, 
for  execution  and  delivery  :  when,  on  motion,  it  was  resolved 
that  the  president  and  secretary  be  authorizeil  to  accept  said 
deed,  when  executed,  and  to  execute  and  deliver  said  bond 
and  mortgage.  Tliis  is  the  same  property  which  Easby  was 
instructed  to  have  conveyed  directly  from  Kaighn  to  the 
company  for  $8000,  and  for  whicli,on  the  first  of  May,  1856, 
stock  of  the  company  to  tiie  amount  of  $6000  was  issued  to 
Kaighn,  so  that  the  property  stood  thecom[)any  in  $26,000. 

It  may  be  suggested  that  the  conduct  of  Easby  .or  of  Dia- 
logue, as  directors,  is  not  in  issue,  and  that  the  facts  alluded 
to  may  admit  of  denial  or  explanation.  That  is  conceded. 
But  these  facts  appear  upon  the  face  of  the  evidence,  and  they 
are  material  as  showing  by  whom  the  stock  of  the  company 
was  owned,  how,  and  for  wiiat  purposes  it  was  held  and 
transferred.  They  are  material  moreover,  as  directly  con- 
firmatory of  other  evidence  in  the  cause.  They  show  tliat 
Easby  and  Dialogue  were  partners  in  the  iron  manufacturing 
business,  when  the  charter  of  this  iron  manufacturing  com- 
pany was  obtained.  That  they  turned  over  to  tiie  company 
at  a  valuation  of  $70,000,  all  their  land,  machinery  and  other 

Vol.  I,  E 


78  CASES  IN  CHANCERY. 

Stratton  v.  Dialogue. 

partnership  property,  including  patent  rights  and  the  good 
will  of  tlieir  business,  in  payment  for  subscriptions  to  the 
capital  stock  of  the  corajjany.  That  they  continued  in  the 
control  of  the  company  from  that  hour  until  after  the  trans- 
fer of  stock  to  Allen.  That  no  stock  was  issued  to  any  one 
until  May  first,  1856,  after  the  purchase  of  the  Kaighn'd 
Point  property,  when  60  shares  were  issued  to  Charles  Kaighn. 
On  the  twentieth  of  Deceniber,  1856,  forty  additional  shares 
were  issued  to  Kaighn.  There  were  also  issued  during;  the 
same  period,  between  the  first  of  May  and  the  thirty-first  of 
December,  1856,  500  shares,  just  one  half  of  tlie  whole  stock, 
to  Easby,  and  220  shares  to  Dialogue.  So  that  on  tiie  thirty- 
lirst  of  Deceniber,  1856,  there  had  been  issued  to  Easby  and 
Dialogue,  the  original  proprietors  of  the  property,  720  shares, 
which  was  twenty  shares  more  than  they  paid  for  by  the 
transfer  of  their  property,  and  100  shares  to  Kaighn  in  the 
purchase  of  iiis  land.  There  were  also  certificates  for  50 
shares  of  stock  issued  to  Easby  on  the  thirty-first  of  Decem- 
ber, 1856,  which  are  stated,  under  Easby's  receipt,  to  have 
been  a  dividend  declared  by  the  company  for  1855.  I  do  not 
find  that  any  such  dividend  was  declared.  It  does  not,  I 
think,  appear  upon  the  minutes  of  the  directors.  Easby, 
however,  says  it  was  made  and  recorded  in  the  book  of  the 
comj)any.  It  was  a  ten  per  cent,  dividend.  It  was  supposed 
at  the  time,  that  that  dividend  was  made  out  of  the  profits  of 
the  com[)any's  business  during  that  time,  but  it  was  after- 
wards discovered  not  to  be  so.  It  was  a  mistake  of  the  secre- 
tary. Laying,  therefi)re,  this  certificate  out  of  the  question, 
there  were  but  800  shares  properly  issued,  when  Allen  con- 
veyed his  land  to  the  company.  The  issue  of  the  stock  to 
Allen  was  not,  therefore,  an  over  issue  of  stock,  but  was  stock 
belonging  to  the  company  as  such,  which  had  never  been 
issued,  and  which  was  lawfully  issued  to  Allen  by  the  com- 
pany. 

So  far  as  appears  by  the  evidence,  there  has  not  been  a  share 
of  this  stock  purchased  and  paid  for  after  the  organization  of 
the  company,  except  by  Kaighn  in   1856,  and  by  Allen  ia 


FEBRUARY  TERM,  1863.  79 

Gariss  v.  Gariss. 

1858.  They  both  received  their  stock  directly  from  and  in 
the  name  of  the  company.  They  both  transferred  their  land 
for  the  benefit  of  the  company.  And  yet,  upon  some  pretext, 
the  whole  of  Kaighn's  land  passes  into  the  hands  of  Easby, 
one  of  the  copartners  in  tiie  original  concern,  and  the  presi- 
dent of  the  company  ;  and  the  whole  land  conveyed  by  Allen 
passes  into  the  hands  of  Dialogue,  the  other  copartner,  also  a 
director  of  the  company.  The  evidence  shows,  unequivo- 
cally, in  the  case  of  Dialogue,  that  the  land  was  purchased 
with  the  funds  of  the  company,  anil  that  he  holds  it  in  trust 
for  the  creditors  and  stockholders  of  the  corporation.  It  will 
be  decreed  accordingly. 

I  think  there  is  nothing  in  the  objection  that  the  company 
could  not  take  the  land  in  payment  for  the  stock  of  the  com- 
pany. Clearly,  the  land  having  been  paid  for  by  the  funds 
of  the  company  and  conveyed  to  Dialogue,  he  becomes  a 
trustee  for  the  creditors  and  stockholders.  The  trust  will  be 
enforced  for  their  benefit. 


Philip  Gariss  vs.  Elias  L.  Gariss  and  Isaiah  Gariss.* 

1.  Tlie  enforcement  of  the  specific  performance  of  a  contract  is  an  ex- 
ercise (if  the  extraordinary' jurisdiction  of  the  court,  resting  in  sound  dis- 
cretion. 

2.  Specific  performance  will  not  be  decreed,  where  the  parly  seeking  it 
has  been  guiltj  of  laches,  or  negligent  in  his  application. 

On  final  hearinof. 

Hamilton,  for  complainant. 

McCarter,  for  defendants. 

*  2  Beasley  320. 


80  CASES  IN  CHANCERY. 

Gariss  v.  Gariss. 

The  Chancellor.  By  the  terms  of  the  contract  upon 
which  the  bill  is  founded,  the  time  for  its  performance  ex- 
pired on  the  first  of  April,  1854.  There  was  neither  a  pay- 
raent,  nor  a  tender  of  the  purcliase  money  by  the  complain- 
ant, according  to  the  terras  of  the  agreement.  But  the  bill 
alleges  that  the  time  for  performance  was  extended  by  a 
parol  agreement  between  the  parties;  that  under  this  agree- 
ment the  complainant  made  valuable  improvements  on  the 
premises,  and  continued  in  peaceable  possession  until  1859, 
when  the  defendant,  Elias  L.  Gariss,  conveyed  to  Isaiah 
Gariss,  who  took  title  with  notice  of  the  complainant's  equity. 
The  defendants,  by  their  answers,  expressly  denied  these  alle- 
gations of  the  bill,  and  the  injunction  which  had  been  issued 
to  restrain  the  defendants  from  disturbing  the  complainant's 
possession,  was  dissolved  on  the  ground  that  the  equity  of 
the  bill  was  fully  denied  by  the  answers. 

The  case  made  by  the  bill  is  not  sustained  by  the  evidence. 
The  parties  to  the  contract  are  father  and  son.  In  Decem- 
ber, 1850,  the  real  estate  of  Philip  Gariss,  the  father,  was 
sold  under  execution  by  the  sheriff  of  Sussex,  and  purchased 
by  Elias  L.  Gariss,  the  son,  for  $1101.  The  land  conveyed 
by  the  sheriff  consisted  of  two  tracts  ;  the  one  containing 
about  twenty-one  and  a  half  acres,  and  the  other  nearly 
twenty-five  acres.  Four  hundred  dollars  of  the  purchase 
money  were  realized  by  the  resale  of  the  twenty-one  acre  lot. 
Three  hundred  dollars  were  advanced  by  the  son.  About 
fifteen  acres  of  the  twenty-five  acre  lot  were  reconveyed  by 
the  son  to  the  father,  Philip  Gariss,  and  his  wife.  The 
balance,  something  less  than  ten  acres,  was  retained  by  the 
son,  as  security  for  the  advance  made  by  him  upon  the  pur- 
chase at  the  sheriff's  sale.  On  the  ninth  of  April,  1851,  the 
parties  entered  into  an  agreement,  by  which  it  was  stipu- 
lated that,  upon  the  payment  of  the  $300  advanced  by  the 
sou,  on  the  first  of  April,  1854,  with  interest,  the  ten  acre 
lot  should  be  reconveyed  by  the  son  to  the  father.  This  is 
the  agreement,  the  specific  performance  of  which  is  now 
sought  to  be  enforced. 


FEBRUARY  TERM,  1863.  81 

Gariss  v.  Gariss. 

The  conti'act  was  doubtless  made  for  the  father's  benefit, 
to  affl)rd  hira  an  opjjortunity  of  redeeming  the  land  by  pay- 
ing the  amount  advanced  by  the  son.  I  see  no  reason  to 
doubt  that  the  arrangement  was  carried  out  by  the  son  i» 
entire  good  faith.  It  is  shown  that  the  futiier  was  permitted 
to  remain  upon  the  hind,  and  was  from  year  to  year  offered 
the  privilege  of  reileenn'ng  it  until  the  spring  of  1859,  when 
he  was  distinctly  notified  by  the  son,  that  the  same  would  be 
sold  unless  he  paid  the  amount  due.  During  this  period  the 
father  neither  paid,  nor  offered  to  pay,  any  part  of  the  prin- 
cipal. He  utterly  failed  to  fulfil  the  contract  upon  his  part. 
He  continued  in  possession,  with  the  assent  of  the  son,  but 
whether  under  the  t/,rms  of  the  contract  to  purchase,  or  as  a 
tenant  paying  rent,  is  not  very  clear  from  the  evidence.  Nor 
do  I  deem  it  at  all  material  to  the  result  of  the  case.  If  he 
continued  in  possession  as  a  tenant,  the  contract  to  purchase 
was  determined,  and  there  can  be  no  ground  for  the  com- 
plainant's claim.  But  assuming  that  the  complainant  con- 
tinued in  possession  until  1859  under  the  contract  to  purchase, 
the  time  for  performance  having  been  from  year  to  year  ex- 
tended by  the  son,  there  is  no  pretence  that  it  was  extended 
indefinitely,  nor  is  there  any  satisfactory  evidence  that  it  was 
extended  beyond  the  first  of  April,  1859.  The  allegation  of 
the  bill  is,  that  relying  upon  the  assent  of  the  defendant  to 
the  extension  of  the  time  tor  performance,  the  complainant 
made  improvements  on  the  premises  by  the  erection  of  a 
building.  This  is  denied  by  the  answer,  and  clearly  disproved 
by  the  evidence.  The  evidence  shows  an  entire  willingness 
on  the  part  of  the  son  that  the  father  should  take  the  property, 
upon  the  payment  of  the  money  advanced,  according  to  the 
contract,  for  years  after  the  time  limited  for  performance 
had  expired,  and  great  forbearance  in  enforcing  his  legal 
rights.  This  forbearance  was  exercised  long  after  there 
Beerned  any  reasonable  ground  for  hope  tliat  the  father  would 
ever  be  able,  or  willing,  to  fulfil  his  contract.  He  was 
largely  in  arrear  for  interest  upon  the  purchase  money,  or 
for  rent,  when   the  son   announced    his   purpose  to  sell   the 


82  CASES  IN  CHANCERY. 

Garis3  v.  Gariss. 

property.  The  fact  that  the  sou  sold  a  part  of  the  land  in  1854, 
very  soon  after  the  expiration  of  the  time  for  performance 
limited  by  the  contract,  and  that  the  purchaser  took,  and  has 
ever  since  held  possessi(5n,  with  the  knowledge  of  the  father, 
is  strong  confirmatory  evidence  of  the  view  of  the  transac- 
tion presented  by  the  defendants  answer,  and  that  the  con- 
tract to  purchase  was  then  in  fact  determined. 

But  even  if  the  contract  continued,  and  if  the  defendant, 
by  a  course  of  conduct  inconsistent  with  the  intention  of  in- 
sisting upon  all  objections  grounded  on  the  lapse  of  time,  be 
deemed  to  have  waived  all  objections  on  this  ground,  the 
complainant  is  not  entitled  to  relief.  I  think  the  evidence 
clearly  sliows  tliat  the  vendor  announced  a  clear  purpose  of 
terminating  the  contract  on  the  first  of  April,  1859.  It  Is 
clearly  shown  that  in  July,  1859,  Elias  L.  Gariss  entered 
into  a  contract  for  the  sale  of  the  property  to  a  third  ])arty. 
Written  notice  of  the  contract  was  immediately  given  to  the 
comj)lainant.  The  deed,  in  pursuance  of  this  contract,  was 
delivered  in  December,  1859.  The  purchaser  went  into  pos- 
session under  the  deed,  fenced  the  premises,  and,  with  the 
exception  of  some  opposition  made  by  the  complainant  at 
the  time  of  his  taking  possession,  without  any  objection  froni 
the  complainant.  In  April,  1860,  for  the  first  time,  the 
complainant  tendered  the  purchase  money  and  paid  the  ar- 
lears  of  interest  due  to  the  vendor.  The  acce[)tance  of  the 
j)urchase  money  was  refused,  on  the  ground  that  the  premises 
liad  been  sold  and  conveyed.  The  bill  to  enftrce  the  specific 
})erformance  of  the  contract  was  not  filed  till  the  tenth  of 
!May,  1861,  more  than  two  years  after  the  complainant  had 
been  distinctly  notified  that  the  property  would  be  sold,  and 
nearly  two  years  after  tiie  contra(;t  for  sale  had  been  made 
with  a  third  party  and  the  purchaser  put  into  possession. 

Enforcing  the  specific  performance  of  a  contract  is  an 
exercise  of  the  extraordinary  jurisdiction  of  the  court,  rest- 
ing in  sound  discretion.  Alley  v.  Dcschamps,  13  Vesey  225; 
Moore  V.  Blahe,  1  Bull  &  Beat.  62. 

The  relief  will  not  be  granted  unless  the  party    seeking   it 


FEBRUARY  TERM,  1863.  83 

Woodward's  adm'r  v.  "Woodward's  ex'rs. 

is  prompt  in  his  application,  or  shows  good  reason  for  the 
delay.  Marquis  of  Hertford  v.  Boore,  5  Vesey  719;  Mil- 
ward  V.  Earl  of  Thanef,  Ibid.  720,  note  h  ;  Ends  v.  Wil- 
liams, 4  De  Gex,  M.  &  Gor.  091  ;  Fry  on  Sj^ec.  Perf,  §  732. 
Here  the  complainant  stood  passively  by,  two  years  after 
he  had  been  distinctly  notified  that  the  premises  would  be 
sold,  and  more  than  eighteen  months  after  a  sale  had  actually 
been  made,  and  the  purchaser  had  entered  into  possession, 
without  taking  any  step  to  enforce  his  contract,  or  showing 
any  satisfactory  reason  for  the  delay. 

The  bill  must  be  dismissed  with  costs. 

Cited  in  Grigg  v.  Landis,  6  C.  E.  Or.  513. 


Israel  J.  Woodward,  administrator  of  Forman  Woodward, 
deceased,  vs.  Edward  B.  Woodward  and  Robert  Wood- 
ward, executors  of  Robert  E.  Woodward,  deceased,  who 
was  the  surviving  executor  of  Israel  Woodward,  deceased. 

Israel  Woodward,  by  his  will,  gave  and  bequeathed  as  follows:  "I  give 
aud  bequeath  to  my  daugliter,  Elizabeth  Black,  the  sum  of  fourteen  hun- 
dred dollars,  which  sum  I  order  my  executors  to  put  out  at  interest,  and 
take  land  security  for  the  same,  and  pay  her  the  yearly  interest  arising 
thereon  during  her  natural  life ;  and  if  she  dies  leaving  no  lawful  issue,  I 
order  the  said  sum  of  fourteen  hundred  dollars  to  be  divided  between  ray 
sons  and  daughters  equally."  He  died  leaving  seven  children,  beside  the 
said  legatee.  Shortly  after  his  death,  six  of  the  seven  children  signed  the 
following  instrument:  "Whereas,  our  father,  Israel  Woodward,  in  his  last 
will  and  testament,  has  bequeathed  unto  his  daughter,  Elizabeth  W.  Black, 
the  interest  of  $1400  during  her  natural  life,  but  not  to  receive  any  part  of 
the  principal.  Now  be  it  remembered,  that  we,  the  subscribers,  legatees  of 
the  said  Israel  Woodward,  do  hereby  agree  that  the  eaid  sum  of  11400  shall 
be  paid  to  her  by  the  executojs  of  said  will,  at  the  time  of  the  decease  of 
Edward  Black,  her  present  husband;  but  in  case  the  said  Elizabeth  W. 
Black  should  depart  this  life  before  the  said  Edward  Black,  then  this  agree- 
ment to  be  void  and  of  no  effect."     Ildd — 

1.  The  gift  over  was  valid.  As  applied  to  personal  estate,  such  limiLa- 
tion  over  imports  not  an  indefinite,  but  a  definite  failure  of  issue. 

2.  By  the  terras  of  the  gift,  Elizabeth  Black  took  the  entire  interest  of 
the  testator,  defeasible  on  her  leaving  nc  issue  at  her  death. 


84  CASES  IX  CHANCERY. 


Woodward's  adm'r  v.  Woodward's  ex'rs. 


3.  The  sons  and  daughters  of  the  testator,  living  at  his  death,  took  a 
vested  interest  in  the  residuary  gift,  defeasible  upon  the  death  of  the  legatee 
for  life,  leaving  issue. 

4.  The  interest  of  the  residuary  legatees  vested  not  in  possession,  but  in 
right,  upon  the  testator's  death,  so  as  to  be  transmissible  to  their  personal 
representatives. 

5.  The  limitation  over  is  to  all  tlie  sons  and  daughters  of  the  testator, 
and  the  interest  of  either  of  such  legatees  is  not  defeated  by  his  or  her 
death  before  the  legatee  for  life,  but  is  transmitted  to  his  personal  repre- 
sentatives. 

6.  The  defeasible  interest  of  the  legatees  in  the  legacies  over,  upon  the 
death  of  the  legatee  for  life,  was  assignable. 

7.  The  omission  of  one  of  the  legatees  to  sign  the  agreement,  will  not 
invalidate  it  as  against  those  who  did  sign  it,  they  iiaving  derived  all  the 
benefit  sought  by  the  arrangement,  and  having  incurred  no  additional 
burden  or  loss. 


Beasley,  for  complainant. 

The  litnitatioii  over  would  create  an  estate  tail  in  raiZ  estate. 
The  word  "survivors"  is  not  used.  Only  expression  is  leav- 
ing. Den  V.  Allaire,  Spencer  6;  Morehouse  v.  Cotheal,  1 
Zab.  480;  Den  v.  Howell,  Spencer  411;  Den  v.  Scherick,  Z 
Ilalst.  R.  29. 

"Leaving,"  as  applied  to  personal  estate,  imputes  a  definite 
failure  of  issue.     2  Jarman  on  WUI.h  419,  and  cases  cited. 

The  interest  of  the  legatees  over  was  vested  and  trans- 
missible, although  contingent.  1  Williams  on  Ex^rs  795 ; 
Barnes  v.  Allen,  1  Bro.  Ch.  R.  167. 

It  was  assignable.     2  Story  s  Eq.  Jur.,  §  1040. 

A  family  compromise  to  avoid  litigation  was  a  sufficient 
consideration  for  the  assignment. 

It  will  be  sustained  in  equity  even  without  consideration, 
because  it  is  executed.  Btinn  v.  Winthrop,  1  Johns.  Ch.  R. 
33~» ;  Hayes  v.  Kershaio,  1  Sandf.  Ch.  R.  258  ;  1  Lead.  Cases 
in  Equity  234,  ayid  cases  there  cited. 

The  agreement  not  having  been  executed  by  one  of  the 
clj;klren,  his  share  is  untouched.     1  Dutchcr  302. 


FEBRUARY  TERM,  1863.  86 

Woodward's  adm'r  v.  Woodward's  ex'rs. 

Vroom,  for  defendant. 

The  interest  in  the  legacy  under  the  will,  independent  of 
the  release,  upon  the  death  of  Elizabeth  Black  without  issue, 
vested  in  the  children  of  the  testator  at  his  death,  and  went 
to  their  issue. 

The  release  was  not  an  absolute  sale  or  transfer  of  the 
right  of  the  legatees.  It  was  a  voluntary  arrangement;  at- 
tempted, but  never  completed. 

It  was  intended  to  be  n  joint  agreement,  not  to  be  taken  in 
l)arts.     If  all  did  not  agree,  there  was  no  agreement. 

The  agreement  was  never  carried  into  effect  at  all. 

It  was  void  as  to  Mrs.  Hewlings,  being  signed  by  her 
alone.     Her  husband  being  a  witness,  did  not  bind  her  right. 

The  Chancellor.  Israel  Woodward,  of  the  county  of 
Monmouth,  by  his  will,  bearing  date  on  the  third  day  of  Jan- 
uary, 1821,  gave  and  bequeathed,  among  other  things,  as 
follows,  viz.  "I  give  and  bequeath  to  my  daughter,  Elizabeth 
Black,  the  sum  of  fourteen  hundred  dollars,  which  sura  I 
order  my  executors  to  put  out  at  interest  and  take  land 
security  for  the  same,  and  pay  her  the  yearly  interest  arising 
thereon  during  her  natural  life;  and  if  she  dies,  leaving  no 
lawful  issue,  I  order  the  said  sum  of  fourteen  hundred  dollar.s 
to  be  divided  between  my  sons  and  daughters,  equally." 

The  testator  died  on  the  fifteenth  of  January,  1821,  leav- 
ing his  said  will  unrevoked,  and  leaving  him  surviving 
seven  sons  and  daughters,  beside  the  said  Elizabeth  Black. 
On  the  twenty-second  of  the  same  month  of  January,  seven 
days  after  the  death  of  the  testator,  an  instrument  of  the 
following  tenor  was  signed  by  six  of  the  seven  legatees  of 
the  reversionary  interest,  viz. 

"Whereas  our  father,  Israel  Woodward,  in  his  last  will 
and  testament,  has  bequeathed  unto  his  daughter,  Elizabeth 
W.  Black,  the  interest  of  fourteen  hundred  dollars  during 
her  natural  life,  but  not  to  receive  any  part  of  the  principal. 
Now  be  it  remembered,  that  we  the  subscribers,  legatees  of 
the  said    Israel   Woodward,  do   hereby  agree  that  the  said 


86  CASES  IN  CHANCERY. 

Woodward's  adin'r  v.  Woodward's  ex'rs. 

gum  of  fourteen  hundred  dollars  shall  be  paid  to  her  by  the 
executors  of  said  will,  at  the  time  of  the  decease  of  Edward 
Black,  her  present  husband  ;  but  in  case  the  said  Elizabeth 
AV.  Black  should  depart  this  life  before  the  said  Edward 
Black,  then  this  agreement  to  be  void  and  of  no  effect." 

This  agreement  was  not  signed  by  For  man  Woodward, 
one  of  the  sons.  Anna  Hewlings,  one  of  the  daughters,  at 
the  time  of  executing  the  agreement,  was  a  married  woman. 
Her  husband  did  not  join  in  the  execution  of  the  instrument, 
but  it  was  executed  in  his  presence,  and  attested  by  him  as  a 
subscribing  witness. 

The  bill  is  filed  with  the  view  of  having  the  rights  of  the 
parties  settled,  and  their  resjiective  claims  amicably  ad- 
justed. 

1.  The  gift  over  to  the  sons  and  daughters  of  the  testator, 
upon  the  death  of  his  daughter  Elizabeth,  '•'  leaving  no  issue," 
was  valid.  A  limitation  over  of  real  estate  upon  the  death 
of  the  first  devisee,  leaving  no  issue,  would  create  an  estate 
tail.  But  as  applied  to  personal  estate,  such  limitation  over 
imports  not  an  indefinite,  but  a  definite  failure  of  issue,  and 
the  limitation  over  is  good.  2  Jarman  419,  and  cases  there 
cited. 

By  the  terras  of  the  gift,  Elizabeth  Black  took  the  entire 
interest  of  the  testator,  defeasible  on  her  leaving  no  issue  at 
her  death. 

2.  The  limitation  over  is  to  the  sons  and  daughters  of  the 
testator.  It  is  to  be  divided  equally  between  them  upon 
the  death  of  the  legatee  for  life.  By  the  terms  of  the  limi- 
tation over,  the  sons  and  daughters  of  the  testator,  living  at 
his  death,  took  a  vested  interest  in  the  residuary  gift,  de- 
feasible upon  the  death  of  the  legatee  for  life,  leaving  issue. 
The  interest  of  the  residuary  legatee  vested,  not  in  possession, 
but  in  right,  upon  the  testator's  death,  so  as  to  be  transmis- 
sible to  his  pL'rsonal  representatives.  1  Williams  on  Ex'rs 
757-9. 

The  linfitation  over  of  the  gift,  is  not  to  the  surviving  sons 
and  daughters  of  the  testator,  nor  to  such  of  them  as  shall 


FEBRUARY  TERM,  18G3.  87 

Woodward's  adm'r  v.  Woodward's  ex'rs, 

survive  the  legatee  for  life.  Nor  is  there  any  expression  in 
the  will  iiulieatiiig  the  intention  of  tlie  testator  to  limit  the 
gift,  to  those  only  of  his  sons  and  daughters  who  should  sur- 
vive the  legatee  for  life.  It  seems  very  clear  from  the  terras 
of  the  gift,  that  the  limitation  over  is  to  all  the  sons  and 
daughters  of  the  testator,  and  the  interest  of  either  of  such 
legatees  is  not  defeated  by  liis  or  her  death  before  the  legatee 
for  life,  but  is  transmitted  to  his  personal  representatives. 

3.  The  defeasible  interest  of  the  legatees  in  the  legacies 
over  upon  the  deatli  of  the  legatee  for  life,  was  assignable. 
2  Story's  Eq.  Jiu:,  §  1040. 

The  real  qnestion  in  the  cause  arises  upon  the  validity  and 
effect  of  the  agreement  entered  into  by  a  part  of  the  legatees 
of  the  residuary  interest  with  the  legatee  for  life,  u[)ou  the 
death  of  the  testator.  It  is  urged  that  it  was  in  the  con- 
templation of  the  parties  to  tlie  agreement,  that  all  the  lega- 
tees should  sign  it,  or  that  it  should  not  be  binding  upon 
any.  The  bill  charges,  and  the  answer  does  not  deny,  that 
Elizabeth  Black  was  dissatisfied  with  the  limitation  over  of 
her  legacy  to  her  brothers  and  sisters  upon  her  dying  with- 
out issue,  and  threatened  litigation  in  regard  to  the  will  ;  and 
that  the  legatees  of  the  reversionary  interest,  with  the  ex- 
cej)tion  of  Forman  Woodward,  to  reconcile  the  said  Elizabeth, 
to  avoid  litigation,  and  by  way  of  family  compromise,  signed 
the  agreement.  If  the  compromise  was  effected  and  the  liti- 
gation avoided  by  the  execution  of  the  agreement  by  only 
a  part  of  the  legatees,  it  is  not  perceived  why  the  assignment 
should  not  be  binding  upon  such  as  did  sign  it.  They  de- 
rived all  the  benefit  from  the  arrangement  which  they  could 
have  done,  had  it  been  signed  by  all  the  legatees.  No  addi- 
tional burden,  loss,  or  inconvenience  was  imposed  upon  (hem 
by  the  omission  of  a  part  to  sign.  Having  anthorized  the 
executor  to  pay  over  the  $1400  to  Elizabeth  Black  upon 
the  decease  of  her  husband,  no  one  of  the  j)arties  signing  the 
agreement  could  have  held  the  executors  liable  lor  paying 
over  the  money  in  pursuance  of  such  authority.  And  al- 
though the  iustrument  was  inoperative  as  to  the  interest  of 


88  CASES  IN  CHAXCERY. 

Woodward's  adra'r  v.  Woodward's  ex'rs. 

the  oilier  legatee,  it  was  valid  against  the  parties  to  the 
agreement,  to  the  extent  of  their  respective  interests.  The 
consideration  of  the  agreement  was  tiie  avoidin<x  of  litiixation 
and  the  effecting  of  a  family  compromise.  Those  ends  were 
attained  as  fully  as  if  the  agreement  had  been  signed  by 
every  legatee.  There  was  a  suffieent  consideration  for  the 
agreement,  and  it  will  be  su[)ported  in  equity.  Bann  v. 
Winlhrop,  1  Johns.  Ch.  R.  329  ;  Hayes  v.  Kershow,  1  Sandf. 
Ch.  R.  2G1  ;  1  Leading  Cases  in  Eq.  234. 

But  it  is  ur<red  that  the  aij-reement  was  never  carried  into 
effect.  That,  although  the  husband  of  Elizabeth  Black  died 
many  years  before  her  death,  the  j»rincipal  of  the  legacy  was 
never  demanded  by  or  paid  to  her,  but  remained  in  the  hands 
of  the  executors,  she  receiving  interest  upon  it  till  her  death. 
On  the  other  hand,  it  does  not  a|)pear  that  any  one  of  the 
parties  by  wiiom  the  instrument  was  executed,  ever  ques- 
tioned its  binding  effect  or  objected  to  the  payment  of  the 
money  by  the  executors,  pursuant  to  the  agreement.  Tiiey 
are  all  deceased,  without  having  at  any  time  pretended  to 
have  any  claim  to,  or  interest  in,  the  fund  purporting  to  have 
been  transferred  by  the  agreement.  The  agreement  remained 
unquestioned  in  the  hands  of  the  legatee  for  life.  The  fact 
that  the  principal  of  the  legacy  remained  in  the  hands  of  the 
executors,  the  legatee  for  life  receiving  interest  upon  it,  was 
in  no  wise  inconsistent  with  her  right  to  the  principal,  or  wiih 
the  recognition  of  that  right  by  the  executors.  The  executors 
could  not  pay  over  the  whole  fund,  for  a  part  of  it  had  not 
been  assigned.  It  may  have  been  for  the  interest  and  con- 
venience of  both  parties  that  it  should  remain  in  their  hands. 

The  com[)lainant  is  entitled  to  the  relief  prayed.  As 
executor  of  Elizabeth  Black,  he  is  entitled  to  six  sevenths 
of  the  legacy  of  fourteen  hundred  dollars  bequeathed  by  the 
will  of  the  testator,  and  as  the  administrator  of  Forman 
Woodward,  to  the  remaining  one-seventh  of  the  said  legacy, 
with  the  arrears  of  interest  on  the  said  shares  respectively. 
Just  allowance  must  be  made  to  the  executors  for  their  care 
of  the  fund,  and  for  their  costs  and  expenses. 


FEBRUARY  TERM,  1863.  89 

Tappan'3  ex'r  v.  Ricamio  ct  al. 


Augustus  W.  Cutler,  executor  of  Abraham  Tappan,  de- 
ceased, vs.  Joiix  A.  Ricamio,  Lott  Pguddex  and  others. 

1.  Where  a  mortgage  is  given  to  secnfe  a  trust  fund  belonging  to  llie 
mortgagor,  as  between  himself  and  the  holder  of  a  second  mortgnge  given 
by  him,  he  can  have  no  chiim  in  equity  to  the  fund,  until  the  second  mort- 
gage is  satisfied. 

2.  It  is  within  the  power  of  a  court  of  equity  to  protect  the  interests  of 
legatees  in  remainder,  during  the  life  of  the  tenant  fur  life;  and  the  power 
will  be  exercised,  not  only  in  behalf  of  the  legatee,  but  also  of  his  assignee, 
or  of  any  other  person  legally  entitled  to  the  fund,  upon  the  determination 
of  the  estate  for  life. 

3.  If  a  trust  fund  is  in  danger  of  being  diverted  to  the  injury  of  any 
chiimant  having  a  present  or  future  fixed  title  thereto,  the  administration 
of  the  fund  will  be  duly  secured  by  the  court,  in  such  manner  as  the  court 
may  in  its  discretion,  under  all  the  circumstances,  deem  best  fitted  to  the 
end. 


Samuel  Guerin,  by  will,  gave  $600  to  his  executor,  the 
interest  and  profits  tiiereof  to  be  {)aid  to  his  daughter,  Eunice 
Brown,  during  her  life,  and  at  her  death  the  principal  to  be 
paid  to  her  four  children.  Abraham  Ta))i)an,  the  executor 
of  Guerin,  paid  the  principal  to  the  children,  with  which 
they  purchased  of  Prudden  a  house  and  lot  for  $850.  They 
agreed  to  pay  $600  in  cash,  giving  their  bond  and  mortgage 
to  Tappan  for  ^625,  as  securi t-y  for  the  fund,  and  gave  Prud- 
den a  second  mortgage  for  $250.  The  property  was  pur- 
chased to  make  a  home  for  Mrs,  Brown.  She  accepted  it  in 
lieu  of  the  annuity.  Tappan  died  in  1859,  and  appointed 
A.  W.  Cutler  his  executor. 

The  bill  was  filed  by  Cutler  to  foreclose  the  mortgage. 
Prudden  filed  a  cross  bill,  praying  that  the  original  bill  be 
dismissed,  or  that  the  premises  be  sold  to  pay  encunibrances 
in  order  of  priority.  Prudden  alone  answered  original  bill. 
The  executor  alone  answered  cross  bill.  A  decree  pro  con^ 
fesso  was  taken  as  to  the  other  defendants. 

Cutler,  pro  se. 


90  CASES  IN  CHANCERY. 

Tappan's  ex'r  v.  Ricamio  et  al. 

Pitney,  for  Prudden,  one  of  the  defendants. 

The  original  bill  should  be  dismissed,  or  proceedings 
stayed  until  further  order  of  court. 

The  mortgage  which  the  complainant  seeks  to  foreclose  was 
given  to  the  trustee  of  the  int)rtgagors.  Trustee  is  under  the 
control  of  the  court. 

The  effect  of  the  proceeding  is  to  injure  Prudden.  He 
should  be  decreed  to  have  a  lieu  on  the  fund  in  the  hands  of 
the  executor. 

The  Chancellor.  There  is  no  controversy  as  to  the  or- 
der of  priority  of  the  mortgages,  nor  as  to  the  material  facta 
upon  which  the  rights  of  the  respective  parties  depend. 

As  between  tb.e  executor  of  Tappan  and  Prudden,  it  is  not 
denied  that  the  complainant's  mortgage  is  entitled  to  pri- 
ority. But  it  appears  by  the  cross  bill,  which  is  taken  as 
confessed,  that  the  fund  which  that  mortgage  was  given  to 
.secure,  belongs  to  the  estate  of  Samuel  Guerin,  deceased,  of 
which  Abraham  Tappan  was  executor.  That  by  the  will  of 
said  Guerin,  the  interest  and  j)rofits  of  the  fund  were  be- 
queathed to  his  daughter,  Eunice  Brown,  for  her  life,  and  on 
her  death,  equally  to  her  four  children,  share  and  share  alike. 
The  children  took  a  vested  interest  in  the  legacy  on  the  death 
of  the  testator. 

In  November,  1856,  Eunice  Brown  and  her  four  children, 
the  legatees  under  the  will  of  Samuel  Guerin,  being  desirous 
of  vesting  the  legacy  thus  bequeathed  to  them  in  the  pur- 
chase of  a  house  and  lot  owned  by  Prudden,  as  a  home  for 
the  mother  during  her  life,  purchased  the  mortgaged  prem- 
ises of  Prudden  for  $(S50.  The  title  was  made  to  the  child- 
ren. Six  hundred  and  twenty-five  dollars,  the  amount  of 
the  fund  in  question,  was  furnished  by  the  executor,  and  for 
that  amount  the  children  gave  a  mortgage  to  the  executor  of 
Guerin  to  secure  the  interest  of  their  mother  in  the  fund. 
Two  hundred  and  twenty-five  dollars,  the  balance  of  the  pur- 
chase money,  was  secured  by  a  mortgage  on  the  premises 
from  the  children  to  Prudden.  The  whole  purchase  money 
was  thus  secured  on  the  premises;  Pruddeu's  mortgage  being 


FEBRUARY  TERM,  1863.  91 

Tappan'a  ex'r  v.  Ricamio  et  al, 

last  in  order.  His  security  was  foiiiul  in  the  fact  that  the 
prior  mortgage,  altlioiigh  upon  its  face  ati  absolute  mortgage 
in  tlie  ordinary  form  to  secure  the  sum  of  §62.3  to  the  execu- 
tor, yet  in  truth  was  merely  intended  to  secure  the  rights  of 
the  legatee  for  life.  On  her  death,  the  j)rinci[)al  of  the  fund 
belongetl  to  the  mortgagors.  As  between  them  and  Prndden, 
of  whom  they  purchased,  they  can  have  no  claim  in  equity 
to  the  fund,  until  the  mortgage  given  by  them  to  secure  the 
purchase  money  of  the  mortgaged  premises  is  satisfied. 

If  the  mother  were  now  <lead,  the  fund  would  belong  abso- 
lutely to  the  mortgagors,  who  are  the  legatees  in  remainder. 
If  the  purpose  of  the  mortgage  had  been  expressed  upon  its 
face,  or  if  it  had  been  given  in  terms  to  secure  the  annual 
interest  of  the  fund  to  the  widow  for  her  life,  and  on  her 
death  to  pay  the  principal  to  the  mortgagors,  the  right  and 
equity  of  the  second  mortgagee  would  be  apparent.  Inde- 
])endent  of  the  legal  rights  of  the  executor,  such  is  the  real 
design  and  effect  of  the  mortgage.  He  is  a  mere  trustee  to 
carry  into  effect  the  provisions  of  the  will.  It  is  clear  that 
the  mortgagors  can  have  no  title  to  this  fund  as  against 
Prndden,  their  mortgagee.  A  mortgagor  of  premises,  who 
himself  held  a  mortgage  thereon  at  the  time  he  mortgaged 
his  interest  in  the  premises  to  another,  cannot  set  up  such 
prior  mortgage,  or  any  interest  he  has  acquired  under  the 
same,  against  his  own  mortgagee,  or  any  person  claiming  un- 
der him.      WiUiains  v.  Thorn,  11  Pair/e  464. 

There  is  no  doubt  of  (he  power  and  duty  of  a  court  of 
equity  to  |)rotect  the  interests  of  legatees  in  remainder  during 
the  life  of  the  tenant  for  life.  The  cases  cited  by  the  com- 
plainant's counsel  fully  sustain  the  principle,  and  designate 
the  mode  in  which  the  power  will  be  exercised.  Johnson  v. 
Mills,  1  Veseij,  sen.,  282;  Ilalkl  v.  Thompson,  5  Paige  583; 
Craig  v.  Hone,  2  Edwards^  Ch.  R.  554  ;  1  Story's  Eq.  §  603 ; 
2  Ibid.,  §  826-7,  8  45-6,  851. 

And  the  power  will  be  exercised,  not  only  for  the  protection 
of  the  legatee,  but  of  his  assignee,  or  any  person  legally 
entitled  to  the  fund,  upon  the  determination  of  the  estate  for 


92  CASES  IN  CHANCERY. 

Tappan's  ex'r  v.  Ricamio  et  al. 

life.  In  Johnson  v.  Mills,  1  Vesey,  sen.,  282,  Lord  Chan- 
cellor Hardwicke  said  :  "  I  thought  nothing  was  better  settled 
than  that,  wherever  a  demand  was  made  out  of  assets  cer- 
tainly due,  but  payable  at  a  future  time,  tiie  person  entitled 
thereto  might  come  against  the  executor  to  have  it  secured 
for  his  benefit  and  set  apart  in  the  meantime,  that  he  might 
not  be  obliged  to  pursue  these  assets  through  several  hands. 
Nor  is  there  any  more  useful  part  of  the  jurisdiction  of  the 
court  in  the  administration  of  assets.  Therefore  it  is  ad- 
mitted to  be  done  in  the  case  of  a  legacy  always,  although 
contingent  and  payable  at  a  future  day,  so  as  that  it  might 
fall  into  the  bulk  of  the  estate;  and  this  is  done  to  secure 
every  party  of  course  as  a  common  equity,  Avithout  expecting 
any  suggestion  of  the  insolvency  of  the  executor^  or  of  wast- 
intr  the  assets." 

If  property  in  the  hands  of  a  trustee  for  certain  specific 
uses  or  trusts  (either  express  or  implied),  is  in  danger  of 
being  diverted  to  the  injury  of  any  claimant  having  a  present 
or  future  fixed  title  thereto,  the  administration  of  the  fund 
will  be  duly  secured  by  the  court  in  such  manner  as  the 
court  may,  in  its  discretion  under  all  the  circumstances, 
deem  best  fitted  to  the  end  ;  as  by  the  appointment  of  a  re- 
ceiver, or  by  payment  of  the  fund,  if  pecuniary,  into  court,  or 
by  requiring  security  for  its  due  preservation  and  ai)propria- 
tion.     2  Stort/s  Eq.,  §  826,  827. 

If  the  tenant  for  life  were  now  dead,  the  proper  decree 
would  be,  after  satisfying  any  claim  that  the  executor  might 
have  upon  the  fund  for  administering  the  same,  to  pay  out 
of  the  proceeds  of  the  sale  of  the  mortgaged  premises,  first, 
the  claim  of  Prudden,  and  the  balance,  if  any,  to  the  mort- 
gagors. During  her  life,  it  is  necessary  that  the  principal 
of  the  fund  should  be  secured  in  such  manner  as  to  enable 
the  executor  to  execute  the  trust  by  paying  her  the  interest 
as  it  accrues.  This  may  be  done,  either,  1st,  by  directing  a 
sale  of  the  premises,  subject  to  the  annuity  of  the  legatee  for 
life  ;  or,  2nd,  by  directing  the  proceeds  of  the  sale  to  be  ap- 
plied to  satisfy  the  mortgages  in  the  order  of  their  priority, 


FEBRUARY  TERM,  1863;  93 

Vandnyne  v.  Vanduyne. 

and  retaining  the  fund  belonging  to  the  estate  of  Guerin 
under  the  control  of  the  court,  to  be  applied  in  satisfaction 
of  the  equitable  claims  of  the  respective  parties.  The  first 
form  of  decree  will  occasion  less  ex[)ense  and  hazard  to  the 
parties,  and  will  probably  be  most  free  from  objection.  A 
reference  will  be  necessary  to  ascertain  the  amount  due  upon 
the  respective  mortgages.  Upon  the  coming  in  of  the  report, 
a  decree  will  be  made  in  such  form  as  counsel  may  settle  as 
most  advantageous,  under  the  circumstances,  for  the  parties 
interested. 

Whatever  form  of  decree  may  be  adopted,  the  rights  of 
the  legatee  for  life  must  be  adequately  secured.  She  is  before 
the  court,  j\nd  it  is  the  duty  of  the  court  to  see  that  her  in- 
terests, so  far  as  they  may  be  incidentally  affected,  should  be 
carefully  guarded. 


Elizabeth  Yanduyne  vs.  Alfred  Yanduyne  and  others. 

1.  Whether  the  execution  commands  the  sheriff  to  sell  so  much  of  the 
premises  as  may  be  necessary  to  satisfy  the  decree,  or  to  raise  the  sum  re- 
quired out  of  the  premises,  the  duty  imposed  upon  him,  as  to  the  quantity 
of  land  to  be  sold,  is  the  same.  His  duty,  in  either  event,  is  to  sell  only 
so  much  of  the  premises  as  may  be  necessary  to  satisfy  the  requirements  of 
the  execution,  provided  such  portion  can  be  conveniently  and  reasonably 
detached  from  the  residue  of  the  property. 

2.  A  mere  error  of  judgment,  or  mistaken  exercise  of  discretion,  by  the 
sherifT,  in  the  absence  of  fraud  or  unfairness  in  the  sale,  affords  no  ground 
for  the  interference  of  the.  court.  ' 

3.  A  judicial  sale  will  not  be  interfered  with,  when  the  party  seeking 
relief  has  been  guilty  oi  laches  in  the  pursuit  of  his  remedy. 

4.  Motion  denied  without  costs,  the  applicant  acting  in  behalf  of  minors. 


On  petition  to  set  aside  a  sheriff's  sale. 
Vanaita,  for  the  petitioner. 

YOL.  I.  P 


94  CASES  IN  CHANCERY. 

Vanduyne  v.  Vandnyne. 

Runyon,  for  purchaser,  contra,  cited  Parhhursi  v.  Cory,  3 
StocU.  234. 

The  Chancellor.  The  defendant  applies  to  set  aside  a 
sale  of  real  estate,  made  by  the  sheriff  of  the  county  of  Mor- 
ris, by  virtue  of  an  execution  issued  out  of  this  court. 

1.  The  first  ground  relied  upon  is,  that  the  sheriff,  by 
virtue  of  the  execution,  was  required  and  authorized  to  sell 
only  so  much  of  the  premises  as  was  necessary  to  satisfy  the 
amount  due  upon  the  execution  :  whereas,  he  sold  the  whole 
j)remises  for  a  sum  far  exceeding  that  amount. 

Where  the  execution  commands  the  sheriff  to  sell  so  much 
of  the  premises  as  may  be  necessary  to  satisfy  the  decree,  it 
imposes  no  different  duty  upon  the  officer  as  to  the  quantity 
of  land  to  be  sold,  than  if  it  had  commanded  him  to  raise  the 
sum  required  out  of  the  premises.  His  duty,  in  either 
event,  is  to  sell  only  so  much  of  the  premises  as  may  be 
necessary  to  satisfy  the  requirement  of  the  execution,  pro- 
vided such  portion  can  be  conveniently  and  reasonably  de- 
tached from  the  residue  of  the  property.  Tiernan  v.  Wilson, 
6  Johns.  Ch.  B.  414  ;  Menoin  v.  Smith,  1  Green's  Ch.  R. 
196;  Coxe  v.  Halsted,  Ibid.  311;  Parkhurst  v.  Cory,  3 
StocU.  233  ;  Groff  v.  Jones,  6  Wend.  522. 

2.  It  is  urged  that  the  execution  might  have  been  satisfied 
by  the  sale  of  a  part  of  the  premises,  without  prejudice  to 
the  remainder,  and  that  the  conduct  of  the  sheriff'  in  making 
sale  of  the  whole  premises,  amounted  to  an  abuse  of  trust. 
The  premises  to  be  sold  consisted  of  a  small  farm  of  about 
thirty-eight  and  a  half  acres,  and  a  timber  lot  of  about 
eleven  acres  and  a  half,  separate  from  the  farm.  On  the 
day  of  sale,  the  defendant,  Alfred  Vanduyne,  requested  the 
sheriff  to  sell  the  wood  lot  and  about  eleven  acres  and  three 
quarters  of  the  farm  land,  leaving  twenty-six  acres  and 
three  quarters,  upon  which  are  all  the  buildings  on  the 
premises,  unsold.  The  allegation  of  the  defendant  is,  that 
the  land  thus  requested  to  be  sold  in  separate  parcels  would 
bave  brought   more   than   sufficient  to  satisfy  the  execution, 


FEBRUARY  TERM,  1863. 


Vanduvne  v.  Vanduvne. 


and  that  the  land  would  have  sold  more  advantageously  in 
parcels  than  in  the  mode  adopted  by  the  sheriff.  The  alle- 
gation is  not  sustained  hy  the  evidence.  It  rests  exclusively 
upon  the  ex  i^rte  affidavit  of  the  defendant,  Alfred  Van- 
Duyne,  unsupported  by  the  testimony  of  any  other  witness. 
He  says  that  he  would  himself  have  given  forty  dollars  per 
acre  for  the  lots  thus  designated  and  requested  to  be  sold, 
rather  than  tliat  they  should  have  been  sold  for  less;  and 
that  other  persons  at  the  sale  told  hira  that  they  would 
have  given  forty  dollars  per  acre  for  them  if  sold  sepa- 
rately. He  does  not,  however,  state  that  he  would  pay 
that  price  upon  a  resale  of  the  property,  nor  does  he  pre- 
tend that  he,  or  that  any  other  person  at  the  sale,  inti- 
mated to  the  sheriff  his  willingness  to  purchase  at  the  price 
designated  in  his  affidavit.  The  sheriff,  on  the  other  hand, 
states,  that  when  the  request  svas  made  to  sell  the  land 
in  parcels,  the  solicitor  of  the  complainant  objected,  on  the 
ground  that  a  sale  in  that  mode  would  be  prejudicial  to  the 
interests  of  the  complainant.  That  he  thereupon  adjourned 
the  sale,  and  satisfied  himself  by  examination  and  inquiry 
that  the  property  would  be  injured  by  selling  it  in  the  mode 
proposed.  That  he  thereupon  sold  the  premises  together, 
l)elieving,  as  he  still  believes,  that  method  of  sale  to  be  most 
for  the  interest  of  all  parties  interested  therein.  In  confirm- 
ation of  his  views,  the  sheriff  states  that  the  part  proposed 
to  be  separated  from  the  farm  was  remote  from  the  public 
road,  with  no  means  of  access  to  it  from  the  highway  except 
over  the  other  portion  of  the  tract,  which  he  properly  sup- 
posed he  had  no  authority  to  guaranty  to  the  purchaser.  I 
think  the  weight  of  the  testimony  is,  that  the  sheriff  exer- 
cised his  discretion  wisely,  and  that  the  premises  were  sold 
to  the  best  advantage.  But  if  the  fact  were  otherwise,  there 
is  clearly  no  ground  upon  which  this  court  can  interfere 
with  the  discretion  exercised  by  the  sheriff  in  making  the 
sale.  There  is  no  imputation  uj)on  his  integrity,  or  against 
the  fairness  of  the  sale.  It  is  difficult  to  resist  the  impres- 
sion created  by  the  evidence,  that  the  application  of  the  de- 


06  CASES  IN  CHANCERY. 

Vanduyne  v.  Vanduyne, 

fendant  was  prompted  rather  from  a  desire  to  delay  the  sale, 
than  from  any  well  founded  expectation  that  the  interest  of 
the  parties  interested  would  be  promoted  by  a  resale.  There 
is  another  ground  upon  which  this  sale  ought  not  to  be  in- 
terfered with.  The  sale  was  made  on  the  twenty-sixth  of 
January.  The  de«l  was  to  have  been  delivered  on  the  ninth 
of  February.  No  intimation  was  given  at  the  time  of  sale 
that  the  sale  would  be  contested.  The  defendant  rested, 
without  taking  any  step,  until  there  was  barely  time  to  pro- 
cure an  order  of  the  court  to  restrain  the  delivery  of  the 
deed.  Meanwhile  the  purchaser  was  permitted  to  borrow 
money  and  make  all  his  arrangements  for  the  completion  of 
the  purchase.  No  notice  was  given  him  of  any  objection  to 
the  sale,  until  he  appeared  at  the  time  and  place  designated 
to  receive  his  title,  when  he  was  informed  that  the  sheriff 
was  restrained  from  delivering  the  deed.  He  is  not  then 
furnished  with  the  evidence  upon  which  his  right  to  receive 
a  title  for  the  premises  is  resisted,  nor  is  the  evidence  fur- 
nished until  too  late  for  the  purchaser  to  prepare  to  resist  the 
application  on  the  day  originally  designated  for  the  hearing. 
It  is  no  excuse  for  this  delay,  that  the  defendants' counsel  was 
from  home.  He  might  have  been  correspouded  witii,  or  other 
counsel  procured. 

The  purchaser  of  these  premises  has  acted  in  entire  good 
faith.  He  had  no  connection  with  the  parties,  or  with  the 
subject  matter  of  the  controversy  in  the  cause,  but  attended 
the  sale  for  the  purpose  of  purchasing  a  farm  for  his  own 
occupation,  after  he  had  sold  his  own.  He  has  made  his  ar- 
rangements to  complete  the  purchase  and  take  immediate 
possession  of  the  farm.  As  a  measure  of  public  policy,  it  is 
of  the  utmost  importance  that  a  person  thus  purchasing  at  a 
eheriff 's  sale  should  not  be  drawn  into  controversy,  or  have 
his  rights  as  a  purchaser  impugned  for  matters  over  which 
he  has  no  control,  and  for  which  he  is  in  no  wise  responsible, 
except  upon  the  most  cogent  necessity  for  the  protection  of 
the  rights  of  others.  If  purchasers  at  judicial  sales  come  to 
understand  that  they  purchase  with  the  hazard  of  litigation, 


I 


FEBRUARY  TERM,  1863.  97 

Johnson  v.  Cummins. 

founded  on  an  error  of  judgment  or  a  mistaken  exercise  of 
discretion  by  the  sheriff,  it  will  unavoidably  tend  to  deter 
persons  from  bidding,  and  operate  detrimentally  upon  the 
rights  of  all  parties  interested. 

A  stronger  case  would  have  been  presented  for  the  inter- 
ference of  the  court,  if  the  complainant  had  had  no  interest 
in  the  premises  after  the  satisfaction  of  the  execution.  But 
they  are  charged  with  her  support  and  maintenance  during 
life.  Another  year's  annuity  is  already  due.  If  a  portion 
of  the  premises  had  been  sold,  as  proposed  by  the  defendant, 
and  had  proved  sufficient  to  satisfy  the  amount  due  on  the 
execution,  the  residue  of  the  premises  must  have  been  again 
advertised,  and  the  expense  of  another  sale  incurred  to  meet 
the  accruing  claims  of  the  complainant.  The  complainant 
was  interested,  as  well  as  the  defendants,  in  having  the  sale 
made  in  the  most  advantageous  manner.  In  every  aspect  of 
the  case,  I  am  satisfied  that  the  sale  was  fairly  made,  in  the 
manner  most  for  the  interest  of  all  parties  concerned. 

The  application  must  be  denied,  the  rule  to  show  cause  be 
discharged,  and  the  sheriff  directed  forthwith  to  deliver  the 
deed  to  the  purchaser  on  his  complying  with  the  terms  of  sale. 
As  the  defendant  represents  the  interests  of  minors,  the  order 
is  made  without  costs  to  either  party  as  against  the  other. 

Cited  in  Holmes  v.  Sleek,  1  Stew.  174. 


William  L.  Johnsox  and  Geoege  G.  Johnson,  partners, 
,       &c.,  vs.  Rebecca  Cummins  and  Geokge  Cummins. 

1.  In  the  absence  of  any  trust  deed  or  settlement,  defining  and  limiting 
the  mode  in  which  a  separate  estate  shall  be  charged  by  the  wife,  equity 
will  charge  it,  while  she  lives  apart  from  her  husband,  witli  debts  con- 
tracted by  her  for  her  own  benefit,  without  any  express  appropriation  by 
the  wife,  of  the  estate  or  any  part  of  it,  to  the  payment  of  the  debt. 

2.  The  separate  estate  of  a  married  woman  is  subject  in  equity  to  the 
payment  of  debts  contracted  in  reference  to,  and  upon  the  faith  and  credit 
of  the  estate. 


98  CASES  IN  CHANCERY. 

Johnson  v.  Cummins. 

3.  Where  a  married  woman  lives  apart  from  her  husbaml,  and  having  a 
Beparate  estate,  contracts  debts,  the  court  will  impute  to  her  the  intention 
of  dealing  with  her  separate  estate,  unless  the  contrary  is  shown, 

4.  It  is  no  defence  to  a  claim  upon  the  separate  estate  of  the  wife,  that 
the  separate  estate  of  the  wife  created  by  the  statute  {Nix.  Dig.  503  §  1,) 
is  a  legal  estate,  and  that  the  enforcement  of  the  claim  in  this  aspect,  is  not 
properly  within  the  cognizance  of  a  court  of  equity. 

5.  The  jurisdiction  of  a  court  of  equity  over  the  separate  estate  of  a 
married  woman  rests  not  merely  upon  the  ground  that  it  is  an  equitable 
estate,  but  upon  the  ground  that  it  is  her  separate  estate,  which  is  equitably 
subject  to  contracts  and  engagements  entered  into  by  her,  which  are  not 
legally  binding  upon  her  personally,  and  which  can  not  be  enforced  at  law. 

6.  Nor  is  it  material,  whether  the  estate  is  vested  in  a  trustee,  the  inter- 
est of  the  wife  being  merely  equitable,  or  directly  in  her,  so  that  she  has 
both  the  legal  and  equitable  interest. 

7.  The  statute  (act  of  1852,  for  the  better  securing  of  the  property  of 
married  women,)  does  not  impair  the  right  of  the  husband  to  an  estate  by 
curtesy  in  the  separate  property  of  the  wife. 

8.  Nor,  as  it  seems,  does  the  act  take  away  the  husband's  right  to  ad- 
minister upon,  and  to  take  as  his  own,  the  personal  property  of  the  de- 
ceased wife,  where  she  dies  intestate. 


The  complainants'  bill  charges,  that  on  the  first  of  May, 
1860,  Rebecca  Cummins  was  indebted  to  the  complainants, 
who  are  engaged  in  mercantile  business  under  the  partner- 
ship name  of  W.  L.  &  G.  W.  Johnson,  in  the  sum  of  $108.94, 
which  indebtedness  was  contracted  by  the  said  Rebecca  for 
merchandise  sohl  and  delivered  to  her,  between  the  first  of 
March,  1854,  and  tiie  first  of  May,  1860,  with  interest  thereon. 
The  said  Rebecca,  in  the  year  1826,  was  married  to  George 
Cummins,  and  is  still  his  wife,  but  for  eight  years  last  past 
she  has  been  living  separate  from  her  husband.  Prior  to  the 
first  of  April,  1851,  she  was  possessed  of  considerable  estate, 
of  about  the  value  of  $5000,  as  of  her  own  separate  property, 
and  with  such  property  about  the  first  of  April,  1851,  she 
purchased  a  farm,  containing  one  hundred  and  fourteen 
acres,  for  the  sum  of  $3438.30,  and  took  a  conveyance  there- 
for, in  the  name  of  Henry  Vreeland,  in  trust  for  herself. 
About  the  fifth  of  February,  1852,  the  said  Vreeland  exe- 
cuted under  his  hand  and  seal  a  declaration  of  trust,  whereia 


FEBRUARY  TERM,   1863.  99 


Johnson  v.  Cummins. 


he  declared  that  the  said  lands  were  purchased  with  the 
separate  property  of  the  said  Rebecca,  and  that  he  held  the 
same  under  the  said  conveyance  in  trust  for  her,  as  her  sepa- 
rate property.  About  the  ninth  of  March,  1855,  Vreeland, 
by  the  direction  of  the  said  Rebecca,  conveyed  his  legal  estate 
in  the  lands  to  John  Green,  and  was  discharged  from  his 
trusteeship.  On  the  twenty-third  of  April,  1855,  the 
said  Rebecca,  in  her  own  name,  without  joining  with  her 
husband,  she  then  being  separated  from  him,  conveyed  her 
estate  in  the  said  lands  to  the  said  John  Green,  for  the  sum 
of  $4641.70,  and  received  the  said  consideration  money  for 
her  own  separate  use.  About  the  twenty-fourth  of  November, 
1855,  Green  conveyed  the  said  land  to  Amos  Swayze,  for 
$5000,  and  about  the  first  of  March,  1858,  Swayze  conveyed 
the  land  to  the  said  Rebecca  in  her  own  name,  her  husband 
not  being  named  in  the  deed,  for  the  consideration  of  $5350. 
The  said  Rebecca  is  still  the  owner  of  said  land  as  her  sepa- 
rate estate,  which  is  worth  the  sum  of  $5350,  and  encumbered 
only  to  the  amount  of  $350,  by  a  mortgage  given  by  the  said 
Rebecca  in  her  own  name  to  one  James  K.  Swayze. 

Since  the  year  1851,  the  said  Rebecca  has,  with  her  separate 
estate,  always  transacted  business  in  her  own  name,  and  since 
her  separation  from  her  husband,  she  has  conducted  the 
farming  business  in  her  own  name,  and  for  her  own  separate 
use  and  benefit;  buying,  selling,  and  trafficking  in  her 
own  name,  giving  bonds,  mortgages,  and  promissory  notes, 
as  a  feme  sole,  and  transacting  business  generally  as  an 
unmarried  woman.  Since  April  1st,  1858,  she  has  lived 
upon,  and  carried  on  the  business  of  the  farm  iu  her  own 
name,  and  for  her  own  separate  use,  and  is  possessed  of  con- 
siderable personal  property  upon  the  said  farm,  which  she 
holds  in  her  own  name,  with  which  the  farm  is  worked  and 
cultivated.  The  debt  of  the  said  Rebecca  to  the  complain- 
ants was  contracted  for  goods,  clothing,  flour,  groceries,  and 
other  necessaries  sold  to  her  upon  her  own  credit  by  com- 
plainants out  of  their  store,  and  were  such  articles  as  were 
necessary   for   herself  and   family,   and   the   business    of  the 


100  CASES  IX  CHANCERY. 

Johnson  v.  Cummins. 

farm,  and  were  purchased  for  the  benefit  of  her  separate 
estate,  and  were  consumed  and  enjoyed  by  her  in  the  main- 
tenance and  support  of  herself,  and  carrying  on  the  farm  for 
her  own  use  and  benefit,  and  were  sold  by  the  complainants 
to  the  said  Rebecca  entirely  upon  the  credit  of  her  separate 
estate,  and  solely  upon  the  faith  of  her  own  responsibility. 

Her  husband,  the  said  George  Cummins,  is  now  and  has  for 
some  years  been  insolvent,  and  the  owner  of  no  property. 
For  the  last  eight  years  he  has  not  lived  with  his  wife,  nor 
exercised  any  control  over  her  affairs,  and  the  complainants' 
debt  cannot  be  collected  from  him.  On  the  first  of  May, 
1860,  the  said  Rebecca  gave  to  the  complainants  her  note, 
with  her  son,  Morris  G.  Cummins,  as  security,  whereby  she 
promised  to  pay  the  said  sum  of  ^108.94  to  the  complainants 
or  bearer.  At  the  time  the  said  note  was  given,  the  said 
Morris  G.  Cummins  resided  with  his  mother,  and  still  resides 
with  her  :  he  then  was,  and  still  is,  a  man  of  no  property,  and 
unable  to  pay  the  debt.  The  said  note  was  not  taken  in 
satisfaction  of  the  debt,  or  upon  the  responsibility  of  the  said 
Morris,  but  upon  the  credit  of  the  said  Rebecca  and  her 
separate  estate.  On  the  seventeenth  of  July,  1862,  the  com- 
plainants instituted  a  suit  at  law  for  the  collection  of  the 
said  note,  against  the  said  Rebecca  and  Morris  G.  Cummins, 
to  which  the  defendant  filed  her  plea,  alleging  her  coverture 
with  the  said  George  Cummins  in  bar  of  any  recovery  against 
her  in  the  said  suit,  and  alleging  no  other  defence  thereto; 
whereby  the  complainants  were  compelled  to  abandon  their 
suit,  and  being  without  remedy  at  law,  are  compelled  to  re- 
sort to  equity  for  relief. 

The  prayer  of  the  bill  is  for  a  discovery  toucliing  the  de- 
ifendants  separate  estate,  that  an  account  may  be  takea 
ithereof,  and  of  the  complainants'  debt  with  interest,  and  that 
ithe  same  may  be  charged  upon  the  separate  estate  of  the 
:said  Rebecca,  and  the  payment  thereof  decreed  to  be  made 
■out  of  the  said  separate  estate,  and  that  a  sale  of  so  much 
thereof  as  may  be  necessary  to  satisfy  the  said  debt,  may  be 


FEBRUARY  TERM,  1863.  101 

Johnson  v.  Cummins. 

made  by  the  decree,  and  under  the  direction   of  this  court. 
To  this  bill  there  is  a  general  demurrer  for  waut  of  equity. 

•  J.  M,  Robeson,  for  Rebecca  Cunamins,  in  support  of  the 
demurrer. 

Tlie  demurraut  is  possessed  of  no  separate  estate.  All  the 
property  she  held  at  the  time  of  filing  the  bill  was  real  estate 
in  fee,  and  personal  estate  held  by  herself  as  a  feme  sole,  as 
general  property,  aud  not  specially  for  her  own  use  and 
benefit. 

There  is  no  case  where  the  wife's  general  property  has  been 
held  liable  for  her  debts,  while  the  husband  was  living. 

The  husband,  at  common  law,  was  bound  to  take  care  of 
his  wife  and  children. 

As  to  the  real  estate,  bill  shows  it  is  not  separate  estate. 
Nothing  but  the  act  of  1852  keeps  the  husband  from  the  en- 
joyment of  it.  She  could  only  divest  herself  of  it  by  joining 
in  a  deed  with  her  husband.  That  act  does  not  convert  the 
legal  estate  of  the  wife  into  an  equitable  estate. 

Under  the  act  of  24th  March,  1862,  {Pamph.  271)  the 
complainant  has  adequate  remedy  at  law.  Prior  to  that  act 
the  wife  could  not  have  bound  either  herself  or  her  husband, 
or  charged  the  estate. 

The  bill  does  not  set  out  the  nature  and  character  of  the 
wife's  estate  with  sufficient  certainty. 

3Ir.  Robeson  cited  2  Kent  145  ;  4  Ibid.  202  ;  Leaycraft  v. 
_  Hedden,  3  Green's  Ch.  R.  512  ;  Young  v.  Paul,  2  Stockt.  401. 

Depue,  for  the  complainants,  contra. 

As  to  remedy  at  law.  The  act  of  1862  does  not  exclude 
jurisdiction  of  this  court.  It  was  intended  to  give  concur- 
rent jurisdiction  to  courts  of  law.  Again,  it  was  only  in- 
tended to  apply  where  parties  are  living  together,  not  where 
living  apart. 

As  to  uncertainty  of  bill.  It  was  not  necessary  to  make 
more  specific  charges  than  we  have  done.  Wheaton  v.  Phil- 
lips, 1  Seas.  221. 


102  CASES  IX  CHANCERY. 

Johnson  v.  Cummins. 

There  are  two  classes  of  authorities.  In  the  first,  the  tlis- 
ti action  is  chiefly  in  regard  to  the  evidence  wliere  the  wife  is 
living  separate,  and  where  with  her  husband.  Where  she  is 
living  separate,  the  intent  to  bind  the  estate  will  he  presumed 
fron]  the  fact  of  contracting  the  debt.  Where  she  is  living 
with  her  husband,  the  intent  must  be  proved.  In  the  second 
class,  the  distinction  lies  in  the  character  of  the  estate.  Where 
lands  are  charged,  it  must  be  in  writing;  where  personalty, 
it  may  be  by  parol. 

The  wife's  separate  estate  will  be  bound  by  contracts  which 
do  not  refer  to,  or  mention  it.  Halme  v.  Tenant,  1  Bro.  Ch. 
B.  16. 

Equity  will  enforce  against  the  separate  estate,  those  debts 
which  it  is  equitable  and  just  to  enforce.  Johnson  v.  Galla- 
gher, 7  Jur.  K  S.  273;  2  Story's  Eq.  Jur.,  §  1401,  a;  Cole- 
man v.  Wooley's  Ex'r,  10  B.  Hon.  320. 

As  to  relief.  Wheaton  v.  Phillips,  1  Beas.  221  ;  Dicker- 
man  V.  Abrahams,  21  Barb.  551. 

As  to  form  of  decree.  Stuart  v.  Kirkwall,  3  Mad.  387  ; 
Francis  v.  Wigzell,  1  Ibid.  145  ;  Owens  v.  Dickenson,  1  Craig 
&  Ph.  48  ;  N.  A.  Coal  Co.  v.  Dijett,  7  Paige  Ch.  E.  1  ;  Gard- 
ner V.  Gardner,  Ibid.  112  ;  Ewing  v.  Smith,  3  Dess.  417. 

Mr.  Depue  further  cited  1  White  &  Tador's  Lead.  Cases 
333 ;  Murray  v.  Barlee,  3  Mylne  &  K.  209  ;  Corbett  v.  Poel- 
nitz,  1  T.  R.  5;  Bell  on  Husband  and  Wife  513,  516,  and 
cases  there  collected;  Bullpin  v.  Clark,  17  Vesey  365  ;  Tul- 
lett  V.  Armstrong,  4l  ^eay.'319;  Jarman  v.  Wilkerson,  7  B. 
Mon.  293  ;  Curtis  v.  Engle,  2  Sandf.  Ch.  R.  287  ;  Gardner 
V.  Gardner,  22  Wend.  526  ;  Colvin  v.  Currier,  22  Barb.  387  j 
Billings  V.  Baker,  28  Barb.  343. 

The  Chancellor.  The  design  of  the  bill  is  to  charge 
certain  real  estate  in  the  possession  and  enjoyment  of  the 
wife,  with  a  debt  contracted  by  her  for  the  benefit  of  the  es- 
tate, and  for  the  support  of  herself  and  her  family  while  liv- 
ing separate  from  her  husband. 

It  is  urged,  in  support  of  the  demurrer,  that  the  wife  haa 


FEBRUARY  TERM,  1863.  103 

Johnson  v.  Cummins. 

no  separate  property  in  the  estate  in  question,  but  that  it 
was  subject  to  the  marital  rights  of  her  husband.  The  ck'ar 
allegation  of  the  bill  is  that  she  was  possessed,  as  of  her  own 
separate  property,  of  an  estate  of  about  the  value  of  $5000, 
with  a  part  of  which  she  purchased  the  farm  in  question, 
■and  took  a  conveyance  thereof  in  trust  for  herself;  that  the 
trustee,  by  a  declaration  of  trust  executed  under  his  hand 
and  seal,  declared  that  the  land  was  purchased  with  the 
separate  property  of  the  wife,  and  that  he  held  the  same 
under  the  said  conveyance,  in  trust  for  her  as  her  separate 
})roperty.  The  bill  further  alleges,  that  the  land  was  subse- 
quently, and  subsequent  to  the  passage  of  the  act  of  1852, 
"for  the  better  securing  the  property  of  married  women,"  con- 
veyed to  the  wife,  the  husband  not  being  named  in  the  deed  ; 
that  the  wife  is  still  the  owner  of  the  said  land  as  her  sepa- 
rate estate;  that  since  the  first  of  April,  1858,  soon  after 
the  title  was  conveyed  to  her,  she  has  lived  upon,  and 
carried  on  the  business  of  the  farm  in  her  own  name,  and 
for  her  own  separate  use ;  and  that  she  is  possessed  of  con- 
siderable personal  property  upon  the  said  farm,  which  she 
holds  in  her  own  name,  and  with  which  the  same  is  worked 
and  cultivated. 

The  demurrer  necessarily  admits  the  truth  of  the  facts 
stated  in  the  bill,  so  far  as  they  are  relevant  and  well 
))ieaded,  although  it  does  not  admit  the  conclusions  of  law 
drawn  therefrom. 

The  objection  of  the  demurrant  is,  that  the  estate  origi- 
nally conferred  on  the  wife  was  not  given  for  her  sole  and 
separate  use,  so  as  to  defeat  the  marital  rights  of  the  hus- 
band ;  and  that  the  vesting  of  the  property  by  the  wife  for 
her  separate  use,  without  the  concurrence  of  the  husband, 
was  illegal  and  void.  But  how  is  that  to  be  decided,  upon 
the  present  state  of  the  pleadings,  in  the  face  of  the  aver- 
ments contained  in  the  bill  and  admitted  by  the  demurrer? 
If  the  original  gift  of  the  estate  to  the  wife  was  insufficient 
in  law  to  defeat  the  marital  rights  of  the  husband,  and  the 
trust  created  for  tiie  use  of  the  wife  was  without  the  consent 


104  CASES  IN  CHANCERY. 

Johnson  v.  Cummins. 

or  concurrence  of  the  husband,  and  those  facts  are  intended 
to  be  relied  on  as  a  defence  to  the  complainants'  claim,  they 
should  be  distinctly  averred  in  pleading. 

This  objection,  it  will  be  observed,  is  not  raised  by  the 
husband  for  the  protection  of  his  rights.  He  was  made  a 
defendant  to  the  suit,  but  permitted  the  bill  as  against  him- 
self to  be  taken  as  confessed.  The  wife,  by  leave  of  the 
court,  defends  alone.  It  is  admitted  that  she  has  treated 
this  proj^erty  as  her  separate  estate;  that  she  has  used,  occu- 
pied, and  enjoyed  it  as  such  ;  that  she  has  gained  credit  upon 
the  faith  of  her  sole  and  separate  ownership,  and  that  the 
debt  of  the  complainants  was  incurred  for  the  benefit  of  that 
estate,  and  for  her  separate  maintenance.  Under  such  cir- 
cumstances, the  plea  from  the  lips  of  the  wife  after  a  divorce 
from  her  husband,  that  the  original  creation  of  the  separate 
estate  was  invalid,  and  that  she  had  no  title  to  the  estate  as 
against  her  husband,  does  not  commend  itself  to  the  favor- 
able consideration  of  a  court  of  equity.  If  there  be  such 
defence,  it  should  at  least  be  distinctly  averred  and  clearly 
proved. 

For  the  purposes  of  the  present  inquiry,  it  must  be  as- 
sumed that  the  wife  had  a  separate  estate,  which  she  might 
lawfully  charge  with  debts  created  for  the  benefit  of  the 
estate,  or  for  her  own  support  and  benefit. 

In  the  absence  of  any  trust  deed  or  settlement,  defining 
and  limiting  the  mode  in  which  the  estate  shall  be  charged 
by  the  wife,  equity  will  charge  the  separate  estate  of  the 
wife,  while  living  apart  from  her  husband,  with  debts  con- 
tracted by  her  for  her  own  benefit,  or  for  the  benefit  of  the 
estate,  without  any  express  appropriation  by  the  wife,  of  the 
estate,  or  any  part  of  it,  to  the  payment  of  the  debt. 

The  general  principle  is,  that  a  married  woman  is  enabled 
in  equity  to  contract  debts  in  regard  to  her  separate  estate, 
and  that  the  estate  will  be  subject  in  equity  to  the  payment 
of  such  debts.  In  order  to  bind  the  separate  estate,  it  must 
appear  that  the  engagement  was  made  in  reference  to,  and 
upon  the  faith  and  credit  of  the  estate.     But  where  a  mar- 


FEBRUARY  TERM,  1863.  105 

Johnson  v.  Cummins. 

ried  woman  living  apart  from  her  husband,  and  having  a 
separate  estate,  contracts  debts,  the  court  will  impute  to  her 
the  intention  of  dealing  witli  her  separate  estate,  unless  the 
contrary  is  shown.  Owens  v.  Dickenson,  1  Craig  &  Ph.  48  ; 
2  Story's  Eq.  Jur.,  §  1401,  §  1401  a;  1  Lead.  Cases  in  Eq.  406. 

The  allegations  of  the  bill  bring  tiie  case  within  the  well 
settled  principles  upon  which  equity  administers  relief  in  re- 
gard to  the  separate  estates  of  married  women. 

The  bill  further  alleges,  that  after  the  passage  of  the  act 
of  1852  the  estate  was  conveyed  to  the  wife,  and  that  since 
that  time  she  has  resided  upon  the  estate,  separate  from  her 
husband,  and  has  carried  on  business  in  her  own  name  and 
on  her  own  account;  and  that  during  that  period,  for  the 
purposes  of  the  said  estate,  a  part  of  this  debt  was  created. 
To  this  part  of  the  claim  it  is  objected,  that  the  separate 
estate  of  the  wife  created  by  the  statute  is  a  legal  estate,  and 
that  the  enforcement  of  the  claim  in  this  aspect  is  not  the 
proper  subject  of  the  cognizance  of  a  court  of  equity.  This 
objection  was  directly  met  and  overruled  by  the  Chancellor 
in  Wheaton  v.  Phillips,  1  Bens.  221. 

The  jurisdiction  of  a  court  of  equity  over  the  subject, 
does  not  rest  upon  the  ground  tiiat  the  estate  of  the  wife  is 
an  equitable  estate  merely,  but  upon  the  ground  that  it  is 
her  separate  estate,  which  is  equitably  subject  to  contracts 
and  engagements  entered  into  by  her,  which  are  not  legally 
binding  upon  her  personally,  and  which  cannot  be  enforced 
at  law.  Whether  the  estate  of  the  wife  is  vested  in  a  trustee, 
her  interest  being  merely  equitable,  or  whether  the  estate  is 
vested  directly  in  her,  so  that  she  has  both  the  legal  and 
equitable  interest,  is  immaterial.  By  operation  of  the  statute, 
she  holds  the  land  during  her  coverture  as  her  separate  es- 
tate, for  her  sole  and  separate  use  and  benefit,  free  from  the 
control,  debts,  or  engagements  of  her  husband,  and  exempt 
also  from  the  claims  of  his  creditors.  It  is  as  much  charge- 
able in  equity  with  her  engagements  as  any  other  property 
which  she  may  hold  to  her  separate  use.  The  statute  has 
created  an  interest  which  before  could  only  have  been  created 


106  CASES  IN  CHANCERY. 

Johnson  v.  Cummins. 

by  a  declaratiot]  of  trust;  but  the  interest  of  the  wife  in  re- 
lation to  the  property,  and  to  the  equitable  claims  of  creditors 
against  it,  are  not  essentially  different  from  those  which  sub- 
sist in  relation  to  her  separate  estate,  when  created  by  settle- 
ment or  deed  of  trust.  It  is  declared  by  the  statute  to  be  her 
sole  and  separate  property  as  if  she  were  a  feme  sole.  The 
only  difference  is,  that  being  a  feme  covert,  she  cannot,  as  a 
ferae  sole,  make  a  valid  contract  touching  the  property,  which 
can  be  enforced  at  law.  Equity,  therefore,  applies  the  remedy 
by  appropriating  the  property  to  the  satisfaction  of  the  debt. 
Nor  is  the  jurisdiction  of  equity  over  the  subject,  affected  by 
the  fact  that  the  legislature  has  given  concurrent  jurisdiction 
to  the  courts  of  law.  If,  then,  the  complainant's  case  is  within 
the  operationof  the  act  of  March  24th,  1862,  Pamph.  L.  271, 
which  may  well  be  doubted,  it  cannot  affect  the  jurisdiction 
of  this  court  or  the  complainants'  title  to  relief  in  equity. 

A  question  was  raised  upon  the  argument,  as  to  the  extent 
of  the  wife's  interest  in  the  property  that  can  be  reached  or 
affected  by  the  decree  of  the  court,  under  the  case  presented 
by  the  bill.  The  determination  of  that  point  is  in  no  wise 
essential  to  the  decision  of  the  question  now  under  considera- 
tion, but  it  is  proper  to  state  that  an  intimation  of  opinion 
then  n)ade  by  tiie  court  was  not  well  founded. 

The  design  of  the  statute,  Nix.  Dig.  503,  §  3,  as  plainly 
evinced,  was  to  protect  the  estate  of  the  wife  in  lands  granted 
to  her  during  coverture,  from  the  power  of  the  husband,  and 
from  the  claims  of  his  creditors.  It  declares  that  she  shall 
hold  the  pro[)erty  to  her  sole  and  separate  use,  and  that  it 
shall  not  be  sulject  to  the  disposal  of  her  husband,  nor  be 
liable  for  his  debts.  The  language  of  the  statute  may  have 
full  effect  without  at  all  impairing  the  right  of  the  husband 
to  an  estate  by  curtesy.  The  better  opinion  therefore  is,  that 
the  estate  remains  in  the  husband  unaffected  by  the  statute. 
This  is  in  accordance  with  the  clearly  expressed  opinion  of 
Mr.  Justice  Vredenburgh,  and  seems  to  be  the  necessary  re- 
sult of  the  opinion  of  the  Chief  Justice  in  Naylor  v.  Field, 
o  Butcher  287  ;  Ross  v.  Adams,  4  Dutcher  160. 


FEBRUARY  TERM,  1863.  107 

Winship  v.  Winship. 

A  contrary  opinion  was  held  upon  the  construction  of  a 
statute  of  the  state  of  New  York,  nearly  identical  with  our 
own,  in  Billings  v.  Baker,  28  Barb.  3^3.  But  the  decided 
weight  of  authority  in  that  state  is  adverse  to  the  decision 
in  Billings  v.  Baker,  and  in  accordance  with  the  views  ex- 
pressed in  the  Supreme  Court  of  this  state.  Hurd  v.  Cass, 
9  Barb.  366  ;  Smith  v.  Colvin,  17  Barb.  157  ;  Clarh  v.  Clarh, 
24  Barb.  581  ;  Vallance  v.  Bausch,  28  Barb.  633 ;  Willard 
on  Real  Edate  59. 

And  it  seems  to  be  settled,  that  the  act  does  not  take  away 
the  husband's  right  to  administer  upon,  and  to  take  as  his  own 
the  personal  property  of  the  deceased  wife  where  she  dies 
intestate,  Shumway  v.  Cooper,  16  Barb.  556  ;  Vallance  v. 
Bausch,  28  Barb.  633 ;  McCosher  v.  Golden,  1  Bradf.  64 ; 
Westvervelt  v.  Gregg,  2  Kern.  202  ;  Ransom  v.  Nichols,  22 
New  York  110. 

The  cases  upon  the  subject,  both    in  respect  to  the  real  and 

personal  estate    of  the    wife,  will    be    found    collected  in-  1 

Wiittaker's  Prac.  {ed.  1863)  177. 

The  denuirrer  must  be  overruled. 

Cited  in  Belfordv.  Crane,  1  C.  E.  Gr.  273;  Peake  v.  Labaw,  6   C.  E. 
Gr.  282. 


Susan  Winship  vs.  George  Winship. 

1.  A  citizen  of  another  state,  bringing  his  effects  into  this,  to  establish  a 
residence  here,  with  the  manifest  intent  of  procuring  a  divorce,  and 
immediately  commencing  a  suit  for  that  purpose,  is  not  an  inhabitant  or  a 
resident  of  this  state,  within  the  meaning  of  "  the  act  concerning  divorces." 
{Nix.  Dig.  223,  §  !•) 

2.  Under  such  circinnstances,  this  court  will  not  maintain  jurisdiction 
of  a  suit  for  divorce,  though  the  charge  of  adultery  be  clearly  proved 
against  the  defendant. 


Slaight,  for  complainant. 
Gilchrist,  for  defendant. 

The  Chancellor.     The  bill  is  filed  for  divorce,  orv  the 
ground  of  adultery.     The  guilt  of  the  defendant  is  clearly 


108  CASES  IN  CHANCERY. 

Winship  V.  Winship. 

proved.  The  complainant  admits,  in  her  evidence,  that  she 
was  living  with  the  defendant  in  a  state  of  adultery  for  two 
years  prior  to,  and  at  the  time  of  her  marriage,  and  the  evi- 
dence is  quite  satisfactory,  that  after  her  marriage  she  was 
guilty  of  adultery  with  a  companion  of  her  husband.  The 
latter  offence  is  claimed  to  have  been  condoned. 

Tiie  husband  admits,  that  since  the  discovery  of  his  wife^s 
adultery,  he  has  been  living  in  a  state  of  adultery  with 
another  woman,  but  alleges  that  he  did  so  with  his  wife's 
consent.  I  refer  to  these  facts  as  showing  that  the  case,  as 
disclosed,  does  not  commend  itself  to  the  favorable  conside- 
ration of  the  court.  It  is  apparent  that  the  marriage  relation 
was  entered  into  by  the  parties  as  a  mere  matter  of  conveni- 
ence, and  is  sought  to  be  dissolved  from  no  higher  motive. 
The  answer  alleges  that  the  bill  was  filed  by  collusion  ;  the 
husband  suggesting  the  course  to  be  pursued,  and  agree- 
ing not  to  make  any  opposition.  He  opposes  the  divorce, 
not  because  he  has  any  objection  to  being  discharged  from  his 
marital  obligations,  but  because,  as  he  insists,  the  wife  is  at- 
tempting, contrary  to  their  agreement,  to  subject  him  to  the 
costs  of  the  proceeding.  The  wife  qualifies,  without  denying 
the  substance  of  the  charge  of  collusion  to  obtain  the  divorce. 
It  is  apparent  from  the  evidence,  that  both  before  and  since 
the  filing  of  the  bill,  the  parties  have  had  interviews  with 
each  other  on  the  subject  of  the  divorce.  The  conduct  of  the 
parties  has  been  such  as  naturally  to  arouse  suspicion,  and 
justify  extreme  vigilance  on  the  part  of  the  court  in  guarding 
against  gross  imposition. 

If  there  were  no  other  ground  for  objection,  I  should  have 
felt  very  reluctant,  in  a  case  characterized  by  such  repulsive 
features,  to  interfere  for  the  relief  of  either  of  the  parties. 

But  there  is,  in  my  judgment,  another  and  more  decisive 
ground  against  granting  relief  The  parties  are  neither  of 
them  citizens  of  this  state.  They  are  citizens  of  the  state 
of  New  York.  They  were  married  in  that  state.  They  have 
had  there  home  there  since  the  marriage.  The  husband  tes- 
tifies that  he  has  never  been  a  citizen  of  this  state.     At  the 


FEBRUxlRY  TERM,  1863.  109 

Winship  v.  Winship, 

time  the  bill  was  filed  he  lived  in  the  city  of  New  York,  but 
worked  for  his  brother  in  the  city  of  Hudson.  In  the  early 
part  of  April,  1862,  shortly  before  the  bill  was  filed,  the 
woman,  with  whom  tlic  adultery  is  charged  to  have  beea 
committed,  kept  liouse  in  the  city  of  Hudson,  and  the  de- 
fendant sometimes  slept  there.  When  the  wife  received  this 
intelligence  she  was  living  in  the  city  of  New  York.  The 
wife  states  that  when  she  commenced  this  suit  she  was  living 
in  Jersey  City,  but  she  had  left  her  trunk  at  a  friend's  in 
New  York.  She  subsequently  says :  "  When  I  first  heard  of  it 
my  trunk  was  at  Mrs.  Lewis',  and  I  had  it  brought  over  here 
right  away,  and  before  I  commenced  this  suit."  Is  it  pos- 
sible for  evidence  to  disclose  more  clearly  the  animus  with 
which  a  residi'uce  in  New  Jersey  was  chosen  ?  Admit  that 
the  complainant,  with  her  trunk,  reached  her  lodgings  in 
Jersey  City  a  day  or  a  week  before  the  bill  was  filed,  does 
that  constitute  a  residence  in  this  state  within  the  meaning 
of  the  act  of  the  legislature?  I  do  not  think  that  she  was 
either  an  inhabitant  or  a  resident  of  this  state  within  the 
meaning  of  the  act  concerning  divorces.  The  legislature 
did  not  intend  to  invite  the  commission  of  lewdness  within 
the  state,  nor  to  hold  out  inducements  to  the  citizens  of 
other  states  to  abandon  the  appropriate  forum  for  the  adju- 
dication of  their  wrongs  and  seek  redress  in  our  courts.  I 
cannot  believe  that  they  designed  to  subject  the  soil  of  the 
state  to  such  pollution,  or  her  courts  of  judicature  to  such 
degradation.  I  know  that  the  languasxe  of  the  statute  is 
very  broad,  and  may,  in  its  terras,  embrace  the  case  now 
under  consideration.  .  But  I  nevertheless  think  that  the 
legislature  were  legislating  for  the  citizens  of  this  state,  not 
for  others.  The  subject  is  one  of  grave  im[)ortauce,  and  is 
daily  assuming  a  more  serious  aspect.  At  this  hour,  a  large 
proportion  of  the  divorces  asked  for  in  this  court  is  by 
citizens  of  other  states,  who  come  into  this  state  for  the 
mere  purpose  of  obtaining  a  divorce,  and  often  in  evasion  of 
their  own  laws.  There  is  too  much  reason  to  apprehend 
collusion  of  parties  in  actions  of  divorce,  in  regard  to  tho 
Vol.  I.  f» 


110  CASES  IN  CHANCERY. 


Ben?on  v.  Wolverton. 


establi-shraent  of  a  domicil,  as  well  as  with  respect  to  the  pro- 
cedure. Conflict  of  jurisdiction,  injury  to  morals,  reproach 
^o  our  law,  oppression  and  fraud,  as  well  as  obloquy  to  the 
judicature  wdiich  must  administer  the  law,  are  the  evident 
consequences  which  must  follow  from  the  influx  of  parties 
from  other  states  to  obtain  a  dissolution  of  marriage  here,  in 
opposition  to  the  rule  of  their  owu  law. 
The  bill  is  dismissed. 


Cornelius  Benson  vs.  Dennis  Wolverton. 

1.  The  rule,  irrespective  of  the  st;itnte,  is  that  where  a  sole  plaintiff  or 
defendant  dies  before  decree,  the  suit  cannot  be  revived  at  the  instance  of 
the  defendant,  or  of  his  legal  representative. 

2.  The  statute  has  not  altered  the  practice^  except  by  providing  a  more 
expediiions  mode  of  proceeding  by  order,  instead  of  resorting  to  a  bill  of 
revivor. 

3.  No  costs  are  given,  either  under  the  statute,  or  by  practice  irrespective 
of  the  statute,  if  the  complainant,  or  his  representative,  elect  not  to  proceed. 

4.  Where  a  sole  plaintiff  or  defendant  dies  after  the  final  argument,  but 
before  decree,  the  court  may  order  the  decree  to  be  signed  as  of  a  data 
prior  to  the  death  of  the  party. 

5.  Where  a  sole  plaintiff  or  defendant  dies  a/ie?- decree,  either  party  may 
revive  (he  suit.  % 

On  motion  by  the  defendant,  for  an  order  to  revive  suit  on 
the  death  of  a  sole  complainant.  The  bill  had  been  dis- 
missed. 

Titsworth,  for  the  motion. 
J,'  W.  Taylor,  contra. 

The  Chancellor.  By  the  provisions  of  the  act  to  pre- 
vent the  abatement  of  suits,  ]S!'ix.  Dig.  1,  where  a  sole  plain- 
tiff or  defendant  dies  before  decree,  the  suit  cannot  be  revived 
nt  the  instance  of  the  defendant,  or  of  his  legal  representa- 


FEBRUARY  TERM,  1863.  Ill 

Benson  v.  Wolverton. 

tives.  Wliere  a  sole  pluintiff  dies,  his  lawful  representative, 
or  any  person  interested  by  the  death  of  such  plaintiff,  may 
cause  iiimself  to  be  made  complainant  in  the  suit.  Where  a 
sole  defendant  dies,  the  plaintiff  may  cause  the  legal  repre- 
sentatives of  such  defendant,  or  any  person  who  has  become 
interested  by  his  death,  to  be  substituted  as  defendant,  unless 
he  signify  his  disclaimer  to  the  matter  in  controversy.  Nix. 
Dig.  3,  §  6,  7. 

And  if  the  legal  rej>resentative  of  the  deceased  plaintiff, 
or  other  person  becoming  interested  by  his  death,  will  not 
cause  himself  to  be  made  complainant  in  the  room  of  the  de- 
ceased plaintiff;  or  in  case  of  the  death  of  the  defendant,  if 
the  plaintiff  will  not  make  the  legal  representative  of  the  de- 
ceased defendant,  or  other  person  who  may  have  become  in- 
terested by  his  death,  a  party  to  the  suit,  and  cause  the  suit 
to  stand  revived  within  such  time  as  the  court  shall  limit 
and  appoint  for  that  purpose,  the  suit  shall  be  considered  at 
an  end,  and  shall  not  be  revived  in  the  manner  provided  by 
the  act.     Nix.  Dig.  3,  §  8. 

In  either  event,  the  suit  will  not  be  revived  at  the  instance 
of  the  defendant,  or  of  his  representatives.  The  rule  is  the 
same,  irrespective  of  the  statute.  2  DanieWs  Ch.  Pr.  954  ; 
3  J6/cZ.  1700,  1701. 

The  statute  has  not  altered  the  practice  except  by  providing 
a  more  expeditious  mode  of  })roceeding,  by  substituting  new 
parties  and  continuing  the  suit  by  order,  instead  of  resorting 
to  a  bill  of  revivor.  Adamsoyi  v.  Hall,  1  Turner  &  Riiss. 
258  ;  Porter  v.  Cox,  5  Madd.  80 ;  1  Sinitlis  Ch.  P/-.  514 ;  2 
DanidCs  Ch.  Pr.  954;  3  Ibid.  1701. 

Neither  under  the  statute,  nor  by  the  practice  irrespective 
of  the  statute,  are  costs  given  if  the  complainant,  or  his  rep- 
resentative, elect  not  to  proceed. 

But  where  a  complainant  or  defendant  dies  after  the  final 
argument,  but  before  decree,  the  court  may  order  the  decree 
to  be  signed  as  of  a  date  prior  to  the  death  of  the  party.  2 
Folder's  Exchcq.  Prac.  169  ;  Davies  v.  Davies,  9  Vesey  461  ; 
Campbell  v.  Mesier,  4  Johns.  Ch.  R.  342  ;  Vroom  v.  Ditmas^ 


112  CASES  IN  CHANCERY. 

Davison's  ex'rs  v.  Johnson. 

5  Paige  528  ;  2  DanicWs  Ch.  Pr.  1219,  and  note  1  ;  2  Had. 
Ch.  Pr.  529  {ed.  1822). 

And  although  the  I'ule  is  strict  that  before  decree  a  suit 
cannot  be  revived  at  the  instance  of*  the  defendant,  it  is  other- 
wise after  a  decree ;  for  the  riglits  of  the  parties  are  then 
ascertained.  Plaintiffs  and  defendants  are  equally  entitled  to 
the  benefit  of  the  decree,  and  either  has  a  right  to  revive  it. 
3  DanieWs  Ch.  Pr.  1702 ;  Stores  Eq.  PI.  §  372 ;  Peer  v. 
Cooheroio,  2  Bcas.  136. 

Whether  a  suit  will  be  revived  after  a  decree  of  dismissal, 
or  for  the  mere  purpose  of  recovering  costs,  it  is  unnecessary 
now  to  consider.  No  opinion  is  intended  to  be  intimated 
upon  the  question  whether  this  is  a  proper  case  for  a  revivor, 
even  after  decree.  .It  is  clear  tliat  it  is  not  a  case  within  the 
provisions  of  the  statute,  and  if  the  suit  be  revived,  it  can 
only  be  by  bill  of  revivor. 

Cited  in  Marlatt  v.  Warwick  &  Smith,  4  C.  E.  G>\  445 ;  Buckman  y. 
Decker,  12  C.  E.  Gr.  246. 


Ryke  J.  SuYDAM  and  Ephraim  Williamson  and  Ro- 
SETTA,  his  wife,  executors  of  Daniel  Davison,  deceased, 
vs.  Henry  Johnson  and  Sarah,  his  wife. 

1.  The  mquiry  when  tlie  cause  is  heard  upon  a  plea,  is  substantially  as 
if  the  complainant  had  demurred  to  the  plea. 

2.  If  the  complainant  deems  the  plea  bad,  the  case  goes  to  hearing  upon 
l!he  plea ;  if  good,  but  not  true,  he  takes  issue  upon  it  and  proceeds  as  ia 
caae  of  an  answer. 

3.  The  subject  of  inquiry  is  not  the  mere  technical  form  of  the  plea,  but 
the  sufficiency  of  its  averments  to  sustain  the  defence  ;  whether  assuming 
id\.  the  facts  properly  set  out  in  the  plea  to  be  true,  it  presents  a  valid  de- 
fence. 

4.  The  pendency  of  a  former  suit  being  pleaded  in  bar,  the  defendant 
may  state  the  pendency  and  object  of  the  former  suit,  and  aver  that  the 
present  suit  was  brought  for  the  same  matters  ;  or  he  may  omit  the  aver- 
ment that  the  suits  are  for  the  same  subject  matter,  provided  he  state  facta 
sufficient  to  show  that  they  are  so. 

5.  A  complainant  cannot  compel  a  demurrer  upon  the  facts  as  stated  in 
the  bill,  if  they  are  imperfectly  or  inadequately  stated.    The  defendant 


FEBRUARY  TERM,  1863.  113 

Davison's  ex' is  v,  JohnRon. 

must  be  at  liberty  to  plead  the  facts  upon  which  he  relies  for  his  defence, 
in  such  form  and  with  such  detail  as  to  raise  the  real  question  which  he 
desires  to  present, 

6.  An  award  constitutes  no  valid  defence  to  an  action,  unless  it  clearly 
appear  that  the  subject  matter  of  the  suit  was  within  the  award. 


The  facts  essential  to  an  understanding  of  the  case  are  fully 
etated  in  the  opinion  of  the  Chancellor. 

Str^ong,  for  complainants,  cited  Story^s  Eq.  PL,  §  660. 

A.  V.  Schench,  for  defendants,  cited  Nix.  Dig.  99,  §  23, 
24;  McEwcn  v.  Broadhead,  3  Stockt.  129  ;  Flagg  v.  Bonnet, 
2  StocU.  82  ;  Cooper's  Eq.  PI.  280  ;  Kyd  on  Aivards,  ch.  8, 
p.  381 ;  Farrington  v.  Chute,  1   Va-non  72. 

The  Chancellor.  To  a  bill  for  relief,  the  defendants 
pleaded  an  award  in  bar.  The  cause  was  set  down  for  hear- 
ing and  heard  upon  the  plea.  The  argument  involved  both 
the  merits  of  the  plea  and  the  proper  subjects  of  inquiry  under 
it.  It  was  insisted  for  the  defence  that  the  only  proper  subject 
of  inquiry  is  whether  the  plea  is  in  proper  form,  and  that  if  it 
is,  the  plea  must  necessarily  be  sustained.  The  question  is 
not  strictly  whether  the  plea  is  in  proper  form,  but  whether 
in  the  language  of  the  statute  the  plea  be  good  ;  that  is, 
whether  upon  the  face  of  the  plea  it  presents,  if  true,  a  valid 
defence  to  tiie  action.  The  inquiry  when  the  cause  is  heard 
upon  the  plea,  is  substantially  as  if  the  plaintiff  had  demurred 
to  the  plea.  Tiic  question  is  not  whether  the  plea  is  true, 
but  whether,  if  true,  it  is  a  good  defence.  This  is  the  obvious 
meaning  of  the  statute.  If  the  complainant  deems  the  plea 
bad,  the  case  goes  to  hearing  upon  the  plea.  If  he  conceives 
the  plea  to  be  good  though  not  true,  he  takes  issue  upon  it, 
and  proceeds  as  in  case  of  an  answer.  Nix.  Dig.  99,  §  24  ; 
Flagg  v.  Bonnel,  2  Stockt.  82 ;  MeEwen  v.  Broadhead,  3 
Stockt.  129. 

The  subject  of  inquiry  is  not  the  mere  technical  form  of 
the  plea,   but  the  sufliciencj''  of  its  averments  to  sustain   the 


114  CASES  IN   CIIAXCERY. 


Davison's  ex'rsv.  Johnson. 


defence :  whether  it  is  good  both  in  form  and  in  substance  ; 
whether,  viz.  assuming  all  the  facts  properly  set  out  in  the 
plea  to  be  true,  it  presents  a  valid  defence.  This  is  the  real 
meaning  of  the  Chancellor  in  the  cases  cited,  though  the 
language  used  admits  of  misconstruction.  The  extent  of  the 
inquiry  must  therefore  depend  upon  the  structure  of  the  plea 
itself.  If  the  pleader  confine  himself  to  a  simple  and  direct 
averment  of  the  facts  essential  to  constitute  the  plea,  the  in- 
quiry is  within  very  narrow  limits.  But  if,  instead  of  this 
he  sets  out  facts  and  circumstances  from  which  he  asks  the 
court  to  infer  the  fact  necessary  to  sustain  his  plea,  the  in- 
quiry necessarily  takes  a  wider  range,  and  the  court  must 
determine  whether  the  facts  stated  are  tantamount  to  a  di- 
rect averment  of  the  fact,  or  serve  to  establish  the  fact 
essential  to  the  validity  of  the  plea.  And  if  the  pleader  go 
one  step  further,  and  not  only  spread  upon  the  record  the 
facts  upon  which  he  relies  to  establish  the  validity  of  his 
plea,  but  the  result  of  those  facts,  or  the  inference  which  the 
pleader  draws  from  the  facts,  the  court,  in  deciding  upon  the 
validity  of  the  plea,  must  be  controlled  by  the  facts  stated, 
and  not  by  the  averment  of  the  plea  as  to  the  result  of  those 
facts. 

The  defendant  pleads  the  pendency  of  a  former  suit  in 
bar.  He  may  content  himself  with  stating  the  pendency 
and  object  of  the  former  suit,  and  averring  that  the  present 
suit  was  brought  for  the  same  matters.  The  ordinary  form 
will  be  found  in  Beanies''  Pleas  330;  Eqriitij  Draftsman  658  ; 
Curtis'  Precedents  170.  Or  he  may  onut  the  averment  that 
the  suits  are  fov  the  same  subject  matter,  proviiled  he  state 
facts  sufficient  to  show  that  they  are  so.  Flagg  v.  Bonnet, 
2  Stockt.  82. 

The  defendant  in  this  case  has  spread  upon  his  plea  the 
substance  of  a  former  bill  in  this  court.  He  has  set  out  in 
full  the  submission  and  the  award,  and  then  avers  that  the 
subject  of  this  suit  is  within  the  award.  Now,  whether  it  is 
or  is  not  within  the  award,  must  obviously  depend  upon  the 
facts  stated  upon  the  plea,  admitting  those  facts  to   be  truly 


FEBRUARY  TERM,  1863.  115 

Davison's  ex'rs  v.  Johnson. 

stated.  That  is  really  the  question  now  in  controversy  be- 
tween the  parties. 

The  difficulty  in  the  case  has  grown  out  of  its  complicated 
character  and  the  peculiar  structure  of  the  pleadings.  The 
complainants  set  out  in  their  bill  the  history  of  a  long  and 
involved  controversy  between  the  parties,  including  the  award 
which  is  made  the  subject  of  the  plea.  It  is  a  ground  of  ob- 
jection to  the  plea  that  it  states  no  new  matter  not  apparent 
upon  the  bill,  and  that  the  proper  relief  was  by  demurrer. 
But  a  complainant  cannot  compel  a  demurrer  upon  the  facts 
as  stated  in  the  bill,  if  they  are  imperfectly,  or  inadequately 
stated.  The  defendant  must  be  at  liberty  to  plead  the  facts 
upon  which  he  relies  for  his  defence,  in  such  form  and  with 
such  fullness  of  detail  as  to  raise  the  real  question  which  he 
desires  to  present.  The  question  certainly,  by  a  different 
character  of  pleading,  might  have  been  presented  more 
clearly  and  with  less  embarrassment.  But  although  the 
plea  is  encumbered  with  matter  not  pertinent  to  the  defence, 
I  prefer  to  disjx)se  of  the  plea  not  on  any  technical  ground, 
but  to  decide  the  real  question  at  issue  between  the  parties. 
That  question  is  whether  the  submission  and  award  do  in  fact 
include  the  subject  matter  of  this  suit. 

The  controversy  grew  out  of  tiie  settlement  of  the  estate 
of  Daniel  Davison.  The  testator  died  in  1855,  leaving, 
among  other  children  and  heirs-at-law,  three  tiaughters ; 
Rosetta,  who  has  since  intermarritd  with  EphraiiA  William- 
son, Elizabeth,  the  wife  of  Ryke  J.  Suydani,  and  Sarah,  the 
wife  of  Henry  Johnson,  who  were  also  devisees  under  his 
will.  He  appointed  his  unmarried  daughter  Rosetta,  and 
his  sons-in-law,  Suydani  and  Johnson,  his  exec/.ors,  who 
proved  the  will  and  took  upon  themselves  the  b'/rden  of  its 
execution. 

Sarah  Johnson  had  previously  been  married  to  J'Toah  Ap- 
plegate,  who  was  deceased,  leaving  two  childrer/^  Daniel  and 
Elijah  ;  the  latter  being  a  minor.  His  estate,  a'xior.nting  to 
$1600,  was  in  the  hands  of  the  testator,  Daniel  'Oavljon.  Of 
this  sum  Sarah  Johnson,  as  widow,  was  entitle(  Co  ^/ie-third. 


116  CASES  IN  CHANCERY. 

Davison's  ex'rs  v.  Johnson. 

and  her  two  cliildren  to  the  reiuaining  two-thirds.  She  re- 
leased her  interest  in  favor  of  her  children,  who  thereupon 
became  creditors  of  the  estate  of  the  testator  in  the  sum  of 
§800  each.  The  real  estate  was  sold  by  his  executors.  Daniel 
Applegate,  one  of  Sarah  Johnson's  sons,  became  the  pur- 
chaser. His  sliare  was  deducted  from  the  purchase  money 
of  the  estate.  Tlie  share  of  Elijah  was  secured  by  a  mort- 
gage on  the  farm,  given  to  Sarah  Johnson  as  guardian  of  her 
son  Elijah.  She  was  not  in  fact  the  guardian  of  her  son. 
The  bill  alleges  that  the  arrangement  was  made  with  the 
consent  and  approbation  of  her  husband,  and  upon  her  pro- 
raise  to  take  out  letters  of  guartlianship  for  her  son.  The 
money  was  lost,  the  mortgage  proving  worthless.  After  the 
minor  came  of  age,  he  made  a  will  giving  his  whole  estate, 
real  and  personal,  to  his  mother,  and  appointing  his  father 
executor.  The  executor  having  renounced,  an  administra- 
tor with  the  will  annexed  was  appointed.  A  suit  at  law 
was  brought  by  him  to  recover  the  §800  due  from  the  estate 
of  the  testator,  Daniel  Davison.  The  executors  having  set- 
tled their  accounts,  the  suit  was  brought  against  the  devi- 
sees and  heirs-at-law.  A  bill  in  equity  was  filed,  among 
other  things,  for  an  injunction  to  restrain  that  suit.  Pend- 
ing these  suits  the  submission  and  award  in  question  were 
made. 

The  submission  includes  three  points: 

1.  Whether  the  administrator  of  Elijah  Applegate  had  any 
claim  against  the  devisees.of  Daniel  Davison  for  moneys  re- 
ceived by  him  fi'om  the  estate  of  Noah  Applegate. 

2.  Whether  Johnson  and  wife  had  any  lawful  demand  in 
right  of  the  wife  against  said  devisees,  for  moneys  received 
by  Daniel  Davison  frotu  the  estate  of  Noah  Applegate. 

3.  Whether  Johnson  and  wife  had  any  lawful  demand  in 
iiight  of  the  wife  against  Williamson  and  wife  and  Ann  C. 
Vanderveer,  for  interest  upon  a  bond  and  mortgage  given 
,by  Daniel  D.  Applegate. 

There  is  nothing  in  the  submission  which  can  include  the 
-subject  matter  of  this  suit. 


FEBRUARY  TERM,  1863.  117 

Bedford  v.  Newark  Macliine  Company. 

The  question  Involved  in  it  cduKI  not,  under  the  terras  of 
the  subtnission,  have  been  submitted  to,  or  decided  by  the 
arbitrators.  If  there  is  anything  in  the  language  of  the  award 
which  can  by  possibility  bear  a  broader  interpretation,  it 
should  be  construed  in  reference  to  the  power  conferred.  The 
administrator  of  Elijah  Ap[)legato  had  a  clear  right  of  recov- 
ery which  could  not  be  alFected  by  any  real  or  supposed  equity 
between  Sarah  Johnson  and  these  complainants'. 

The  facts  stated  in  the  plea  constitute  no  bar  to  the  suit. 
Nothing  could  be  gained  by  a  reference  to  a  master.  The  ques- 
tion must  be  decided  upon  the  facts  now  before  the  court.  An 
exception  to  the  master's  report,  if  made  by  either  party, 
would  present  the  same  question  again  for  decision  here. 
The  plea  is  overruled. 


Simeon  Bedford  vs.  The  Newark  Machine  Company. 

1.  The  only  criterion  of  insolvency,  furnished  by  "  the  act  to  prevent 
frauds  by  incorporated  compaiucs,"  (in  regard  to  companies  other  than 
banking)  is  the  suspension  of  business, 

2.  The  act  of  insolvency  contemplated  by  the  statute,  is  committed  at 
the  time  the  company  suspends  its  ordinary  business  operations. 

3.  Under  the  42d  section  of  "  the  act  to  authorize  the  establishment,  and 
to  prescribe  the  duties  of  companies  for  manufacturing  and  other  pur- 
poses," all  laborers  in  the  employ  of  the  company  at  the  time  of  the  sus- 
pension  of  its  business  operations,  and  not  those  only  in  their  employ  at  the 
time  of  instituting  legal  proceedings  against  them  as  an  in&olvent  corpora- 
tion, are  entitled  to  i)riority  iu  payment  over  the  other  creditors  of  the 
company. 

4.  The  apprentices  of  such  company  are  entitled  to  their  wages  without 
regard  to  the  time  that  they  were  last  actually  laboring  for  the  company. 
Their  legal  rights  cannot  be  afiected  by  the  refusal  or  inability  of  the  com- 
pany to  furnish  them  with  employment. 


An  injunction  having  been  issued  against  the  defendants 
as  an  insolvent  corporation,  under  the  "  act  to  {)revent  frauda 
by  incorporated  companies,"  receivers  were  appointed,  who 


118  CASES  IN  CHANCERY. 

Bedford  v.  Newark  Machine  Company. 

are  now  settling  the  affairs  of  the  company.  The  receivers 
have  filed  their  petition,  asking  the  direction  of  the  court  ia 
the  disposition  of  the  funds  in  their  hands. 

Ranney,  for  petitioner. 

J.  P.  Jackson,  jun.,  for  laborers  and  apprentices. 

The  Chancellor.  The  bill  in  this  case  was  filed  on  the 
twenty-third  of  October,  1861,  and  an  injunction  thereupon 
issued  against  the  defendants  as  an  insolvent  corporation,  re- 
straining them  from  exercising  their  corporate  po-wers. 

On  tlie  twenty-ninth  of  October,  18G1,  receivers  were  ap- 
pointed, by  whom  the  affairs  of  the  company  are  being  settled, 
and  who  now  ask  the  direction  of  the  court  in  the  disposition 
of  the  funds  in  their  hands. 

The  company  was  incorporated  under  the  provisions  of 
the  act  of  1849,  authorizing  the  establishment  of  manu- 
facturing companies,  and  of  the  supplements  thereto.  Nix. 
Dig.  492.  By  the  forty-second  section  of  the  act,  ifc  is 
provided  that,  "  in  case  of  the  insolvency  of  any  company 
formed  under  the  provisions  of  this  act,  the  laborers  in  the 
employ  of  said  company  shall  have  a  lien  upon  the  assets 
thereof  for  the  amount  of  wages  due  to  them  respectively, 
which  shall  be  paid  prior  to  any  other  debt  or  debts  of  the 
company,"  At  the  time  of  filing  the  bill  and  issuing  the  in- 
junction, tlie  company  was  indebted  to  about  forty  laborers 
in  the  sum  of  $2208.07.  Of  these  laborers,  only  twelve  were 
in  the  actual  employ  of  the  company  at  the  time  of  filing  the 
bill.  The  others  had  ceased  working  for  the  company  at 
various  times,  from  and  after  the  twenty-third  of  March  pre- 
ceding. It  is  insisted  on  the  one  hand,  that  they  are  all 
entitled  to  priority  in  payment  over  the  other  creditors  of  the 
company  j  and  on  the  other,  that  those  laborers  alone  are 
entitled  to  priority,  who  were  in  the  employ  of  the  company 
when  the  proceedings  in  this  cause  were  instituted,  and  the 
business  of  the  company  restrained.  By  the  terms  of  the 
act,  the  lien  upon  the  assets  of  the  company,  and  consequent 
priority  iu   payment,  is  not  given   to  laborers  to  whom  the 


FEBRUARY  TERM,  1863.  119 

Bedford  v.  Newark  Macliine  Company. 

company  are  iiulebtocl  merely,  but  to  laborers  in  the  em- 
ploy of  the  compmuj.  There  is  a  marked  contrast  between 
the  phraseology  of  this  act  and  that  of  the  ''  act  for  the  pro- 
tection and  relief  of  mechanics  and  laborers."  Nix.  Dig.  34, 
§  27.  By  the  terms  of  the  latter  act,  under  an  assignment 
for  the  benefit  of  creditors,  the  wages  of  clerks,  miners,  me- 
chanics and  laborers,  due  at  the  time  of  making  the  assign- 
ment  from  the  person  making  the  same,  are  declared  to  be 
preferred  debts,  and  entitled  to  priority  in  payment.  It  seems 
probable  that  the  terms  of  the  act  now  in  question,  as  well  as 
those  of  the  "act  to  secure  to  operatives  in  manufactories  and 
other  employees  their  wages,"  Nix.  Dig.  46,  §  69,  were 
adopted  not  only  to  secure  remuneration  to  the  operatives,  but 
upon  a  principle  of  sound  public  policy  to  encourage  manu- 
factures by  inducing  the  operatives  to  continue  their  labor, 
notwithstanding  the  inability,  real  or  apprehended,  of  the 
employer  to  pay  their  wages.  Those  laborers  only  are  en- 
titled to  priority  in  payment,  who  were  in  the  employ  of  the 
company  at  the  time  of  their  becoming  insolvent.  But 
how  is  that  time  to  be  determined?  The  company  were 
embarrassed  and  found  difficulty  in  meeting  their  engage- 
ments as  early  as  April,  1861,  and  the  facts  now  before 
the  court  might  perhaps  justify  the  conclusion  that  they 
were  then  indebted  beyond  their  ability  to  pay.  But  they 
continued  their  business  operations,  so  far  as  appears,  un- 
interruptedly, until  the  twenty-fourth  of  September,  when 
they  made  their  last  weekly  payment  to  their  laborers. 
On  the  same  day  two  judgments  were  entered,  and  writs 
of  fieri  facias  issued  against  them  for  small  amounts. 
By  virtue  of  these  executions  levies  were  made,  and  the 
[)remises  occupied  by  the  defendants  were  closed  by  the 
sheriff,  but  after  remaining  closed  a  day  or  two  they  were 
again  opened.  On  the  thirtieth  day  of  September,  two  other 
judgments,  amounting  to  about  $24,000,  were  entered  and 
executions  issued  thereon,  after  which  time  until  the  issuing 
of  the  injunction,  the  laborers  remaining  in  the  em[)loy  of 
the  company  were  employed  on  short  time ;  the  amount  of 


120  CASES  IN  CHANCERY. 

Bedford  v.  Newark  Macliine  Company, 

wages  paid  them  at  any  one  time  not  exceeding  one  third 
the  amount  due.  All  tlie  above  executions  were  outstanding, 
unsatisfied  claims  ou  the  property  of  the  company,  when  the 
injunction  was  issued.  .  The  bill,  which  is  exhibited  by  a 
director  of  the  company,  charges  that  the  comjxiny  were  in- 
solvent and  became  known  to  be  so  on  the  first  of  October, 
18G1.  The  bill  further  charges  that  the  company  is  insolvent 
to  the  knowledge  of  the  complainant,  and  cannot  resume  its 
business  with  safety  to  the  public,  and  advantage  to  the 
stockholders.  There  is  no  evidence  of  any  change  in  the 
operations  of  the  company  between  the  first  of  October  and 
the  time  of  issuing  the  injunction.  Their  business  was  sus- 
pended on  the  first  of  October,  as  fully  as  at  the  time  of 
granting  the  injunction.  From  that  time  the  machinery 
and  stock  of  the  company,  manufactured  and  unmanufactured, 
were  under  levy  for  an  amount  exceeding  their  value,  and 
were  in  the  hands  and  under  the  control  of  the  sheriff.  The 
operations  of  the  company  were  virtually  suspended  from 
inability  to  carry  them  on,  upon  the  first  of  October.  The 
act  of  insolvency  was  then  committed.  All  the  laborers  at 
ihat  time  in  the  emj)loy  of  the  company  have  a  lien  for  their 
wages,  and  are  entitled  to  priority  in  payment  out  of  the 
assets  in  the  hands  of  the  receivers.  It  is  unnecessary  to 
inquire  whether  the  insolvency  of  the  company  may  not  be 
dated  from  the  twenty-fourth  of  September,  when  the  works 
were  first  closed  under  execution,  for  none  of  the  laborers 
left  the  employ  of  the  company  between  those  dates.  Prior 
to  the  twenty-fourth  of  September,  there  is  no  ground  upon 
which  the  company  can  be  declared  insolvent  for  the  pur- 
poses of  the  present  inquiry. 

The  act  respecting  insolvent  corporations,  under  which 
these  proceedings  were  instituted,  looks  to  the  suspension  of 
the  ordinary  business  of  the  company,  or  some  overt  act  by 
which  its  insolvency  can  be  ascertained  and  declared.  The 
court  cannot,  upon  an  inquiry  of  this  nature,  undertake  to 
investigate  the  financial  ability  of  the  corporation  at  previous 
periods,  founded  upon  mere  failure  to  meet    its  engagements, 


FEBRUARY  TERM,  1863.  121 

Bedford  v.  Newark  Machine  Company. 

or  upon  the  actual  state  of  its  finances  after  its  business  has 
been  suspended.  The  bankrupt  hiws  of  England  have,  with 
great  precision,  defined  what  shall  constitute  an  act  of  bank- 
ruptcy, upon  which  proceedings  may  be  instituted  and  the 
party  declared  a  bankrupt.  The  act  in  question  has  furnished 
such  criteria  or  evidences  of  insolvency  in  regard  to  banking 
companies.  Nix.  D'tg.  372,  §  G.  In  regard  to  other  com- 
panies, no  criterion  is  furnished  except  the  suspension  of 
business.  Before  an  injunction  can  issue,  it  must  ajipear  that 
the  company  has  become  insolvent,  and  siiall  not  be  about  to 
resume  its  business  in  a  short  time  thereafter  with  safety  to 
the  public  and  advantage  to  the  stockholders.  Nix.  Dig.  372, 
§5. 

Tiie  apprentices  of  the  company  are  entitled  to  their  wages 
without  regard  to  the  time  that  they  were  last  actually 
laboring  for  the  company.  Tiiere  is  no  evidence  that  they 
were  discharged  or  released  from  their  indentures  prior  to 
the  act  of  insolvency.  Their  legal  rights  cannot  be  affected 
by  the  refusal  or  inability  of  the  company  to  furnish  them 
with  employment. 

It  ajjpears  from  the  receivers'  report,  that  largo  expenses 
have  been  incurred  in  repairs  to  the  real  estate,  and  to  the 
machinery  covered  by  mortgages  and  executions,  and  in  em- 
ploying watchmen  for  the  safe  keeping  of  tiie  property,  both 
real  and  personal.  It  is  proper,  therefore,  that  it  should  be 
referred  to  a  master,  to  ascertain  and  rej)ort  vv'hat,  and  to 
what  an  amount  of  the  said  expenses  and  disbursements  shall 
be  paid  from  the  fund  raised  from  the  sales  of  macliinery 
and  personal  property  encumbered  by  said  mortgages  and 
judgments.  Tiie  receivers'  accounts  will  also  be  referred  to 
a  master,  with  directions  to  examine,  and,  if  necessary,  to 
restate  the  same;  and  also  to  report  wliat  will  be  a  reasona- 
ble and  just  compensation  to  be  allowed  to  the  receivers. 


122  CASES  IN  CHANCERY. 


Berckmans  v.  Berckmans. 


Emile  C.  Berckmans  vs.  Sara  E.  Berckmans. 

1.  The  evidence  of  an  alleged  paramour,  being  particeps  criminis,  is  but 
weak.  But  neitlier  his  evidence,  nor  that  of  the  woman  charged  with  adul- 
tery, is  to  be  rejected  on  the  assumption  that  they  are  guilty. 

2.  Express  testimony  cannot  be  rejected  on  the  sole  ground  of  its  im- 
probabilit)'.     Its  impossibility  alone  can  discredit  the  witness. 

3.  A  witness  must  state/ac/s,  not  inferences,  and  the  court  can  draw  no 
inference,  whicli  tlie  facts  as  proved  do  not  justify. 

4.  Tlie  testimony  of  one  witness  uncorroborated,  unsupported,  and  in  its 
details  improbable,  is  not  sufficient  to  establish  the  charge  of  adultery, 
against  the  full  and  explicit  counter  testimony  of  the  person  accused  and 
her  particeps  criminis. 

5.  It  is  not  necessary  that  the  offence  should  be  proved  in  time  and 
place  as  cliarged  in  the  bill.  The  mind  of  the  court  must  be  satisfied  that 
actual  adultery  has  been  committed,  but  if  the  circumstances  establisJi  the 
fact  of  general  coliabitation,  it  is  enough,  although  the  court  may  be  una- 
ble to  decide  at  what  time  the  offence  was  committed. 

6.  Parol  evidence  of  the  declarations  of  a  particeps  criminis,  even  though 
he  has  confessed  his  guilt,  is  not  competent  evidence  against  the  party 
charged  with  adultery. 

7.  To  establish  the  existence  of  adultery,  the  circumstances  must  be  such 
as  would  lead  the  guarded  discretion  of  a  reasonable  and  just  man  to  that 
conclusion.  It  must  not  be  a  rash  and  intemperate  judgment,  moving 
upon  appearances  that  are  equally  capable  of  two  interpretations. 

8.  The  facts  proven  must  be  such  as  can  not  be  reconciled  with  proba- 
bility and  the  innocence  of  the  parties, 

9.  Mere  imprudence,  indiscretion,  or  folly,  is  not  conclusive  evidence  of 
guilt.  The  mind  of  the  court  must  be  satisfied,  that  there  was  an  intimacy 
between  the  parties  entirely  inconsistent  with  the  duty  whicli  a  virtuous 
wife  owes  to  herself  and  to  her  husband. 

10.  When  the  conduct  of  a  part}'  admits  of  two  interpretations  equally 
consistent  with  probability,  the  one  involving  guilt  and  the  other  consist- 
ent with  innocence,  the  rules  of  evidence  as  well  as  the  dictates  of  justice 
require  that  the  interpretation  should  be  favorable  to  innocence. 

11.  In  the  investigation  of  a  wife's  guilt,  the  conduct  of  the  husband  is 
always  regarded  as  a  most  significant  circumstance.  So  long  as  there  is 
reasonable  doubt  of  her  guilt,  or  a  plausible  ground  for  a  hope  of  her  in- 
nocence, the  husband's  forbearance  is  both  excusable  and  laudable.  But 
when  the  husband  holds  in  his  hands  what  he  claims  to  be  satisfactory 
proof  of  his  wife's  guilt,  his  delay  to  prosecute  is  strong  evidence  in  the 
tvife's  favor. 


FEBRUARY  TERM,  1863.  123 

Berckmans  v.  Berckraana. 

12.  To  prove  adultery  by  circumstantial  evidence,  two  points  are  to  be 
e-tabllshed  ;  the  opportunity  for  the  crime,  and  the  will  to  commit  it. 
Where  botli  are  edahllshed,  the  court  will  infer  the  guilt. 

Williamson  and  Frelinghuyscn,  Attorney  General,  for  com- 
plainant. 

Titsicorth  and  Parker,  for  defendant. 

The  Chancellor.  The  bill  is  filed  by  the  husband  against 
the  wife  for  a  divorce,  on  the  ground  of  adultery.  The  parties 
were  married  at  Plainfield,  in  this  state,  where  they  both 
resided,  on  the  8th  of  February,  1858.  At  the  time  of  the 
marriage  the  husband  was  about  twenty-three,  and  the  wife 
twenty-one  years  of  age.  Two  children  were  born  of  the 
marriage,  viz.  a  son,  who  was  born  near  Augusta,  Georgia, 
where  the  parties  temporarily  resided,  on  the  eighteenth  of 
February,  1851),  and  a  daughter,  born  at  Plainfield,  on  the 
third  of  April,  1860.  They  continued  to  cohabit  as  man  and 
wife  until  September  nineteenth,  1860,  when  the  wife  left  the 
house  of  her  husband,  with  her  two  children,  and  went  to  the 
city  of  New  York,  where  she  remained  about  ten  days,  when 
slie  returned  with  the  children  to  Plainfield,  and  went  to  re- 
side with  her  mother. 

On  the  fourteenth  of  November,  1860,  she  filed  her  peti- 
tion in  this  court  asking  a  divorce  a  viensa  ct  thoro  from  her 
husband,  on  the  ground  of  extreme  cruelty,  and  charging  that 
she  was  compelled  to  leave  his  house  in  consequence  of  his 
ill-treatment,  which  became  unendurable.  On  the  sixteenth 
of  January,  1861,  the  wife  filed  her  petition  for  alimony  pere- 
dcnte  lite,  which  was  granted  on  the  fifth  of  February  there- 
after. On  the  last  named  day,  the  bill  in  this  cause  was  filed 
by  the  husband,  asking  a  divorce  a  vinculo  matrimonii,  on  the 
ground  of  adultery.  The  further  prosecution  of  the  suit,  in- 
stituted by  the  wife,  was  thereupon  suspended,  and  the  suit 
of  the  husband  is  now  brought  to  final  hearing  upon  the 
pleadings  and  proofs. 


124  CASES  IN  CHANCERY. 

_ . . . • m4 

Berckmans  v.  Berckmans. 

The  adultery  is  charged  to  have  been  committed  on  dif- 
ferent days  in  the  months  of  May,  June,  July,  August,  Sep- 
tember and  October,  1859,  and  in  the  months  of  June  and 
September,  1860,  with  one  Randolpli  Titsworth,  and  with 
other  persons  unknown  to  the  complainant.  The  answer 
fully  denies  the  charge  of  adultery,  re-affirms  the  charges  of 
cruelty  preferred  against  the  husband  in  her  bill  of  complaint 
against  him,  and  also  the  charge  that  she  was  compelled  by 
his  ill-treatment  to  leave  his  house. 

The  simple  question  in  the  case  is,  whether  the  evidence  is 
sufficient  to  su})port  the  charge  of  adultery.  The  complain- 
ant offers  both  direct  and  circumstantial  evidence  of  the 
charge;  direct  evidence  I  mean  of  facts,  from  which  the  con- 
clusion of  guilt  is  a  necessary  and  unavoidable  inference. 

I.  As  to  the  direct  evidence,  Mrs.  Maria  E.  Berckmans, 
the  mother  of  the  complainant,  testifies  that  in  June,  1859, 
she  saw  the  defendant  lying  on  the  scfa  in  the  parlor,  and 
Dr.  Titsworth  lying  on  her.  She  further  testifies,  that  in 
the  fall  of  the  same  year,  she  saw  the  defendant  sitting  on  a 
chair  in  her  bed-room  dressed  in  a  loose  sack,  with  her  neck 
and  bosom  exposed,  and  Dr.  Titsworth  sitting  close  by  her 
in  another  chair,  with  one  of  his  arms  lying  on  the  defend- 
ant's neck,  and  kissing  her.  His  other  hand  had  hold  of  one 
of  the  defendant's  hands,  and  was  lying  on  her  lap.  The 
witness  adds  :  "  I  stayed  looking  at  them  only  one  moment, 
till  the  defendant  got  up,  and  he  put  both  arms  around  her 
and  kissed  her,  and  then  I  went  away."  If  this  testimony 
is  true,  it  precludes  the  necessity  of  further  investigation. 
All  speculation  as  to  the  guilt  or  innocence  of  the  defendant 
is  at  an  end.  But  the  defendant  and  the  alleged  •pcirtloeps 
cnminis  have  been  examined.  They  both  utterly  and  most 
explicitly  deny  the  truth  of  the  charge.  Dr.  Titsworth  tes- 
tifies, in  regard  to  the  parlor  scene  :  "  I  never  was  lying, 
upon  the  sofa,  neither  was  Mrs.  Berckmans,  in  ray  presence. 
There  is  no  truth  in  the  statement  of  the  witness.  *  *  * 
I   pronounce  her  statement  in  regard  to  the  bed-room  sceue 


FEBRUARY  TERM,  1863.  125 

Berckmans  v.  Berckmans;, 

emphatically  false.  There  is  not  the  first  paiticle  of  truth 
in  it  whatever.  There  is  no  foundation  for  it.  I  believe  I 
never  was  in  that  room  alone  with  her  in  my  life.  I  was 
never  in  any  room  with  Mrs.  Berckmans  in  the  position  her 
mother-in-law  described,  or  in  any  indecent  or  improper  po- 
sition." The  defendant  herself  is  equally  emphatic  in  her 
denial  of  the  truth  of  the  charge.  Neither  of  these  witnesses 
is  entitled  to  the  credit  of  fair  and  impartial  witnesses. 
It  is  not  an  unnatural  i)resumption,  if  parties  are  guilty  of 
adultery,  that  they  will  not  hesitate  to  resort  to  {)eijury  to 
conceal  their  guilt.  The  alleged  paramour  being  particcps 
crimlnis,  his  evidence  is  but  weak.  2  Greenl.  Ev.^  §  46. 
But  their  evidence  is  not  to  be  rejected,  on  the  assumption 
that  they  are  guilty.  In  the  absence  of  very  clear  evidence 
of  their  guilt,  their  evidence  is  to  be  fairly  weighed  and 
considere<l.  We  have  then  the  testimony  of  both  tlie  parties 
implicated,  against  the  evidence  of  tiie  one  witness  on  the 
part  of  tlie  complainant.  How  far  is  her  testimony  corrobo- 
rated, or  discredited  by  circunistauces,  or  by  other  evidence 
fn  the  case  ? 

1.  The  complainant's  witness  states  that  the  sofa  upon 
which  the  transaction  occurred  in  the  parlor,  stood  on  the 
side  of  tlie  room,  opposite  to  the  door,  with  the  back  of  the 
sofa  against  the  fire  place.  The  defendant  alleges,  and  offers 
evidence  to  jirove,  that  in  June,  1859,  at  the  time  of  the  al- 
leged transaction,  the  sofa  stood  on  the  opposite  side  of  the 
room,  behind  the  door.  It  is  clearly  shown  that  the  place 
usually  occupied  by  the  sofa,  was  against  the  mantel.  It  is 
shown,  I  think  with  equal  clearness,  that  during  a  part  of 
the  summer  of  1859,  it  stood  on  the  opposite  side  of  the  room. 
But  when  it  was  removed,  or  where  it  stood  in  the  month  of 
June,  1859,  is  not  ascertained  by  the  evidence  with  sufficient 
clearness  to  discredit  the  testimony  of  the  complainant's 
witness. 

2.  It  is  insisted  on  the  part  of  the  defence,  admitting  the 
sofa  to  have  stood  where  the  witness  alleged  it  did,  that  it 
was  physically  impossible  for  her  to  have  seen  from  the  posi- 

VOL.  I.  H 


126  CASES  IN  CHANCERY. 


Berckmans  v.  Berckraans. 


ti'on  which  she  says  she  occupied,  either  the  transaction  in 
the  parh^r  or  in  the  bed-room.  These  objections  were  the 
result  of  investigations  made  under  the  direction  of  counsel, 
and  were  doubtless  made  in  good  faith,  and  with  a  full  con- 
viction of  their  truth.  The  high  professional  character  of 
the  counsel,  no  less  than  the  circumstances  under  which  they 
were  presented,  forbids  the  idea  that  they  were  raised  or 
urged  with  any  unfair  purpose,  or  otherwise  than  with  a  full 
conviction  of  their  truth. 

The  witness  stated  that  she  saw  the  transaction  in  the  bed- 
room through  the  window  of  her  dressinir-room  and  throush 
the  window  of  the  bed-room.  Respectable  witnesses,  after 
repeated  experiments,  testified  that  they  were  utterly  unable 
to  see  any  object  in  the  bed-room,  looking  through  the  win- 
dows of  the  two  rooms,  or  even  by  opening  the  window  of 
the  dressing-room.  Other  witnesses  testified  that  objects 
could  be  distinctly  seen  from  one  room  to  the  other,  looking 
through  both  windows.  The  witnesses  on  both  sides  testified 
with  equal  confidence  and  manifestly  with  equally  firm 
convictions  of  the  truth  of  their  respective  statements.  And  in 
the  earlier  stages  of  the  evidence  there  was  a  serious  and 
apparently  irreconcilable  conflict  in  the  testimony.  But  in 
the  progress  of  the  testimony,  the  cau.se  of  the  difficulty  has 
been  satisfactorily  explained.  The  window  of  the  dressing- 
room  opened  to  the  east,  the  window  of  the  bed-room  to  the 
south,  at  the  distance  of  two  or  three  feet  from  the  dressing- 
room  window.  The  line  of  vision  was  such  that  the  external 
light  flUling  upon  the  glass  of  the  window  of  the  bed-room 
obliquely,  was  reflected  to  the  eye  of  the  observer,  thus  con- 
verting the  window  into  a  mirror,  and  leaving  the  room 
beyond  in  utter  darkness.  By  partly  closing  the  shutter  of 
the  window  on  the  opposite  side  to  the  observer,  so  as  to  pre- 
vent the  reflection,  the  whole  difficulty  was  avoided,  and  ob- 
jects within  the  bed-rooai  rendered  clearly  visible.  This 
objection  to  the  credibility  of  the  witness  is  thus  removed. 
Simple  as  the  solution  now  seems,  it  was  not  discovered  till 
much  testimony  on  tlie  point  had  been  taken.     The  witness 


FEBRUARY  TERM,  1863.  127 


Berckmans  v.  Berckraans, 


had  testified  that  it  was  a  bright  day,  and  the  windows  had 
been  thrown  open,  so  that  the  room  was  very  light.  Looked 
at  apparently  under  the  same  conditions  of  light  nothing 
could  be  seen,  and  the  counsel  of  the  defendant  strenuously 
insists  that  this  arrangement  of  the  shutter  was  an  after- 
thought, a  mere  fraudulent  contrivance  to  remove  an  other- 
wise insuperable  objection  to  the  credibility  of  the  testimony, 
and  that  it  is  in  the  highest  degree  improbable  that  the 
witness  should  have  seen  this  transaction  under  the  precise 
conditions  which  alone  would  have  enabled  her  to  see  it. 
This  objection  may  be  entitled  to  consideration  in  weighing 
the  probability  of  her  evidence.  But  for  the  pur|)ose  of  dis- 
crediting the  witness,  the  whole  force  of  the  objection  consists 
in  the  position  that  it  was  impossible  for  her  to  see.  Express 
testimony  cannot  be  rejected  on  the  sole  ground  of  its  im- 
probability. 

3.  The  witness  further  testified  that  she  saw  the  trans- 
action upon  the  sofa  in  the  parlor,  from  the  green-house, 
through  a  window  which  opened  into- the  green-house  from 
the  parlor.  The  sofa  stood  under  the  mantel,  with  its  back 
against  the  breast  work  of  the  chimney,  and  toward  the  side 
of  the  room  in  which  the  window  was.  But  a  small  part  of 
the  end  of  the  sofa  projected  beyond  the  breast  work  of  the 
chimney,  so  that  a  large  portion  of  the  sofa  was  entirely 
concealed  from  the  view  of  a  person  at  the  window.  The 
back  of  the  sofa  at  the  end  was  high,  and  was  directly  in  the 
line  of  vision  between  the  window  and  the  seat  of  the  sofa. 
Careful  measurements  have  been  made  and  furnished,  with 
a  diagram,  to  the  court,  the  accuracy  of  which  are  not  called 
in  question,  and  which,  it  is  insisted,  render  it  demonstrably 
certain  that  the  witness  could  not  have  seen  persons  lying  oa 
the  sofa  as  slie  testified.  The  witnesses  on  the  part  of  the 
defendant,  by  whom  the  premises  were  examined,  testify 
that  the  experiment  was  made  and  repeated  in  their  presence, 
and  that  a  person  lying  on  the  sofa  could  not  be  seen  from 
the  position  in  which  the  witness  stood.  Other  witnesses  of 
equal  respectability,  by  whom  the  premises  were  subsequently 


128  CASES  IN  CHANCERY. 

Berckmans  v.  Berckmans. 

examined,  testify  not  only  that  a  person  lying  on  the  sofa 
may  be  seen,  but  that  the  seat  of  the  sofa  itself  raay  be  seen 
by  a  person  looking  over  the  back.  This  seems  to  me  to  be 
incredible,  assuming  that  the  observations  in  both  cases  were 
made  under  the  same  conditions  and  were  fairly  made  and 
stated  ;  and  physically  impossible,  if  the  measurements  fur- 
nished to  the  court  were  accurate.  I  confess  that  I  am  totally 
unable  to  reconcile  this  conflict  in  the  testimony  except  upon 
the  hypothesis,  either  that  there  was  some  change  in  the  re- 
lative elevation  of  the  floor  of  the  green-house  and  parlor,  so 
that  the  position  of  the  observer  and  altitude  of  the  point  of 
vision  was  changed,  or  that  a  change  was  made  in  the  sofa 
itself.  The  latter  is  the  theory  of  the  defendant's  counsel. 
He  insists  that  when  the  complainant's  witnesses  were  called 
to  examine  the  premises,  another  sofa  with  a  lower  back 
was  fraudulently  substituted,  by  which  device  the  witnesses 
were  innocently  and  unwittingly  induced  to  give  evidence 
necessarily  calculated  to  pervert  the  truth  and  mislead  the 
court.  Evidence  is  offered  tending  to  support  this  view  of 
the  case.  But  I  do  not  choose  to  rest  the  decision  of  this 
point  in  any  degree  upon  this  ground,  involving  as  it  neces- 
sarily does  the  imputation  of  fraudulent  conduct  to  the  com- 
plainant. It  seems  entirely  unnecessary  to  do  so.  The  first 
examination  of  the  premises  by  the  defendant's  witnesses 
was  made  before  the  cross-examination  of  the  complainant's 
witness,  Mrs.  Maria  E.  Berckmans,  was  closed.  The  ex- 
amination and  experiments  were  made  in  her  presence.  She 
took  part  in  making  them,  and  when  it  became  obvious  that 
a  person  lying  on  the  sofa  could  not  be  seen  from  the  position 
in  the  green-house  which  she  occupied  standing  on  the  floor, 
she  said  that  she  stood  upon  a  chair,  and  showed  where  she 
procured  the  chair,  and  where  she  placed  it.  She  alleged 
that  her  daughter-in-law  wore  hoops,  which  raised  her  dress 
very  much  above  the  seat  of  the  sofa,  which  enabled  her  to 
see  the  skirt  of  her  dress.  And  when  recalled  to  the  stand 
and  her  cross-examination  resumed,  the  witness  says  :"  the 
sofa  of  which  I  have  spcken,  is  the  same  sofa  now  in  the 


FEBRUARY  TERM,  1863.  12a 


Berckmans  v.  Berckmana. 


room ;  it  was  standing  as  it  now  does.  I  saw  no  part  of 
Mrs.  Berkmans'  person.  I  saw  only  a  part  of  her  dress.  I 
couldn't  tell  wl)at  part."  And  in  answer  to  the  question 
whether  she  saw  any  part  of  Dr.  Tits  worth's  person,  she 
answers:  "I  saw  Dr.  Titsworth's  feet,  his  boots,  and  the 
feet  lying  on  the  sofa,  on  tiie  same  side  of  the  sofa  where  I 
was  looking  through  the  window."  Now  it  is  admitted  that 
next  to  the  window  of  the  green-house,  a  part  of  a  boot  of  a 
person  lying  on  the  sofa  might  be  seen.  There  is  a  very 
abrupt  descent  of  the  back  of  the  sofa  as  it  curves  at  the 
end,  forming  a  low  arm,  six  to  nine  inches  in  length  from 
the  curve  of  the  back,  and  only  nine  inches  in  height.  At  that 
point,  the  boots  of  a  person  on  the  sofa  might  be  seen.  This 
is  all  the  witness  on  her  cross-examination  pretends  she  sawi 
It  is  needless  to  say  it  is  a  most  serious  alteration  of  her 
original  testimony,  that  she  saw  these  persons  lying  together 
on  the  sofa.  Her  statement  of  what  she  saw  may  be  liter- 
ally true,  and  yet  her  inference  totally  groundless.  Nor  does 
it  relieve  the  difficulty,  to  say  that  she  may  have  seen  the 
boots  and  the  dress  in  a  position  to  justify  her  inference.  A 
witness  is  to  state  facts,  not  inferences,  and  the  court  can 
draw  no  inference  which  the  facts  as  proved  do  not  justify. 
While  this  evidence,  therefore,  does  not  utterly  discredit  the 
witness,  it  goes  far  to  shake  the  reliability  of  her  testimony. 
It  shows  that  what  she  originally  swore  she  saw  was  a  physical 
impossibility,  and  that  after  that  fact  had  been  ascertained, 
her  evidence  was  so  modified  to  meet  the  emergency  as  to 
render  it  of  little  or  no  significance.  While,  therefore,  the 
evidence  of  the  defendant  is  not  sufficiently  decisive  utterly 
to  discredit  the  witness,  it  goes  far  to  shake  the  reliability  of 
her  testimony,  and  to  require  that  it  should  be  closely  scruti- 
nized. 

I  turn,  therefore,  to  other  aspects  of  the  evidence  of  the 
witness,  and  of  the  attendant  circumstances,  which  I  deem 
of  importance  as  affecting  her  credibility.  This  transaction 
is  alleged  to  have  occurred  in  June,  1859.  At  that  time  and 
for  months  afterwards,  not  the  least  intimacy  is  shown    to 


130  CASES  IN  CHANCERY. 

Berckmans  v.  Berckmans. 

have  existed  between  these  parties.  The  complainant  was 
married  on  the  eighth  of  February,  1858.  His  wife,  at  the 
time  of  the  marriage,  was  twenty-one  years  of  age,  and  re- 
sided in  Plainfield,  with  her  mother.  Her  position  in  life 
was  humble.  Her  mother  kept  a  small  fancy  store.  The 
daughter  taught  music  in  private  families  in  Plainfield,  and 
acted  as  organist  of  the  Episcopal  Church.  So  far  as  appears 
from  the  evidence,  she  had  won  for  herself  the  respect  and 
confidence  of  the  community.  After  her  marriage  she  re- 
mained in  Plainfield  with  her  husband  until  tiie  nineteenth 
of  September  following,  when  they  went  to  Georgia,  where 
her  first  child  was  born,  on  the  eighteenth  of  February, 
1859.  Near  the  close  of  April,  1859,  she  returned  to  Plain- 
field  with  her  husband  and  infant,  and  went  to  reside  with 
her  mother-in-law,  Mrs.  Maria  E.  Berckmans,  both  families 
using  in  common  a  parlor  adjoining  the  main  hall  of  the 
house,  upon  the  first  or  lower  floor.  Dr.  Tits  worth,  with 
whom  the  adultery  is  alleged  to  have  been  committed,  was  a 
physician  practising  in  Plainfield.  He  was  a  married  man, 
over  forty  years  of  age,  a  father,  and  the  member  of  a  Chris- 
tian church.  He  had  been  the  physician  of  Mrs.  Berckmans 
before  her  marriage.  He  was  called  to  attend  her  after  her 
return  from  the  south,  and  did  so  at  the  house  of  the  mother- 
in-Llw.  No  particular  intimacy  is  shown  to  have  existed 
between  them  at  this  period,  except  from  the  evidence  of 
Mrs.  Maria  E.  Berckmans  herself.  There  is  not  in  the  evi- 
dence a  whisper  unfavorable  to  the  reputation  of  either  of 
these  parties,  or  to  the  character  of  their  intercourse,  except 
from  the  lips  of  the  mother-in-law.  Is  it  probable,  under 
such  circumstances,  that  the  parties  would  have  committed 
so  gross  an  act  of  adultery  in  broad  daylight,  in  the  parlor 
occupied  in  common  by  two  families,  under  the  very  eye  of 
the  raother-in-law,  ex{)0sed  to  observation  from  without, 
with  an  open  window  into  the  green-house,  liable  to  the  prying 
cariosity  or  casual  observation  of  servants,  and  in  a  situation 
where,  if  the  parlor  door  was  opened,  escape  from  detection 
was  impossible?     Would   the   physician  have  thus  foolishly 


FEBRUARY  TERM,  1863.  131 

Berckinans  v.  Berckmans. 

hazarded  his  reputation  ?  Would  a  young  wife,  who  had 
been  married  but  a  few  months,  have  thus  madly  hazarded 
reputation,  character,  independence,  social  position,  and  all 
that  she  had  gained  by  her  marriage  ? 

Nor  does  the  conduct  of  the  mother-in-law  appear  to  me 
consistent  or  reconcilable  with  her  knowledge  of  the  infi- 
delity of  her  daughter-in-law.  Her  son  was  an  only  child,  in 
whose  welfare  she  must  have  felt  the  deepest  interest.  So 
long  as  the  infidelity  of  his  wife  was  a  matter  of  doubt  or 
suspicion,  she  would  naturally  have  remained  silent,  and 
confined  her  suspicions  to  her  own  breast.  But  when  she 
had  been  herself  an  eye  witness  of  her  guilt,  when  she  knew 
with  absolute  certainly  the  unfaithfulness  of  the  wife  and  the 
dishonor  of  her  only  son,  it  seems  but  natural  that  she  should 
have  made  some  effort  to  reclaim  or  restrain  the  wife,  or  at 
least  to  assure  the  son  of  the  wrong  he  was  suffering,  that 
he  might  guard  against  its  continuance.  She  disliked  the 
daughter-in-law.  She  was  opposed  to  her  marriage  to  her 
sou.  She  refused  to  be  present  at  the  wedding.  She  natu- 
rally preferred  that  her  sou  should  marry  one  of  her  own 
nation,  of  her  own  religious  faith,  and  of  his  own  sphere  in 
life.  He  did  neither.  Regarding  the  daughter-in-law  as  an 
alien  to  her  race,  as  a  heretic  in  religion,  and  probably  as  a 
dishonor  to  her  family,  it  was  natural  that  the  mother  should 
entertain  for  her  the  most  unfriendly  feelings.  She  avows 
franklv  that  she  disliked  her  at  the  time  of  her  marriao:e,  and 
that  her  dislike  increased.  There  was  obviously  no  sympathy 
or  kindly  feeling  existing  between  them.  The  daughter-in-law 
was  tolerated  under  the  mother's  roof  for  the  son's  sake,  but  it 
does  not  appear  that  she  ever  received  from  her  a  word  of 
kindness  or  sympathy.  There  was  no  feeling  of  kindness  to 
restrain  the  disclosure  of  the  wife's  infidelity.  It  is  in  evi- 
dence that  the  wife  was  treated  by  the  mother-in-law  with 
unkindness,  if  not  with  cruelty.  She  threatened,  as  she  ad- 
raits,  for  unguarded,  perhaps  disres[)ectful  language  on  the 
part  of  the  wife,  to  drive  her  from  her  house.  She  charged 
her  in  the  hearing  of  her  servants  with  theft,  and  yet  she 


132  CASES  IN  CHANCERY. 

Berckmans  v.  Berckinans. 

admits  that  she  never  charged  her  with  adultery,  nor  sought 
to  turn  her  from  her  house  on  that  account.  It  appears 
from  the  evidence  that  tlie  mother-in-law,  on  the  first  of 
January,  1860,  with  full  knowledge  of  the  guilt  of  her  son's 
wife — witnessed  by  herself  in  June — confirmed  by  what  she 
saw  in  October,  went  to  Georgia  on  a  visit  to  her  husband, 
leaving  her  sou  in  possession  of  the  house,  and  the  wife  in 
charge  of  the  establishment,  without  a  word  of  remonstrance 
to  the  wife,  or  of  caution  to  her  son,  or  even  of  information 
to  her  own  husband.  The  son  having  removed  to  another 
residence  during  the  absence  of  the  ujother  in  Georgia,  and 
the  wife  having  given  birth  to  a  second  child  in  April,  re- 
turned to  the  mother's  house,  with  her  consent  and  aj>proba- 
tion,  in  September,  where  she  remained  until  she  abandoned 
him  for  alleged  misconduct.  Even  after  the  wife  had  left 
her  husband,  the  mother-in-law  declared  that  her  doors  were 
open  to  the  daughter-in-law  if  she  chose  to  return.  Now, 
that  a  mother,  a  woman  of  wealth  and  of  respectable  social 
position,  should  so  have  demeaned  herself,  seems  to  me  in 
the  highest  degree  unnatural  and  improbable.  Her  love  for 
her  son,  her  dislike  for  his  wife,  her  regard  for  her  own  repu- 
tation and  that  of  her  family,  would  have  prompted  her  to 
speak  and  to  act.  But  for  fifteen  months  not  one  word  of 
friendly  warning  to  the  son,  not  one  word  of  kindly  remon- 
strance, or  indignant  rebuke,  or  angry  coudemiration  to  the 
daughter-in-law,  escapes  her  lips.  She  quietly  submits  to 
have  her  house  turned  into  a  brothel,  and  to  have  a  foul  blot 
inflicted  upon  the  honor  and  reputation  of  her  family.  It 
would  be  a  reflection  upon  the  witness  to  credit  her  state- 
ment that  she  saw  what  she  now  imagines,  or  says  she  saw, 
or  believed  what  she  now  professes  to  believe.  1  here  is  no 
evidence  at  the  time  of  this  transaction,  or  until  the  follow- 
ing year,  of  any  intimacy  between  the  wife  and  Dr.  Tits- 
worth.  He  testifies  (and  so  is  his  account)  that  he  visited 
the  house  twice  in  May,  on  the  twenty-fit'th  and  twenty-sixth, 
to  vaccinate  the  child,  and  that  he  did  not  visit  the  house 
again   professionally  until   September,  and    no  witness   has 


FEBRUARY  TERM,  1863.  133 

Berckmans  v.  Berckmans. 

been  called  to  show  that  he  was  there.  Pie  says  that  he  was 
in  the  house  but  once  in  the  month  of  June,  when  lie  called 
to  procure  the  scab  from  the  arm  of  the  child,  and  that  he 
did  not  then  see  Mrs.  Berckmans,  but  the  servant  only. 
Under  these  circumstances,  I  do  not  think  the  testimony  of 
Mrs.  Berckmans,  uncorroborated  and  unsu[)j)orted  as  it  is, 
sufficient  to  establish  the  charge  of  adultery,  against  the  full 
and  explicit  counter  testimony  of  the  defendant  herself,  and 
of  Dr.  Titsworth. 

11.  The  direct  evidence  of  guilt  having  failed,  the  com- 
plainant's case  must  rest  upon  the  circumstantial  evidence 
adduced  in  its  support.  It  is  clearly  not  necessary  that  the 
offence  should  be  proved  in  time  and  place.  The  mind  of 
the  court  must  be  satisfied  that  actual  adultery  has  been 
committed,  but  if  the  circumstances  establish  the  fact  of 
general  cohabitation  it  is  enough,  although  the  court  may  be 
unable  to  decide  at  what  time  the  offence  was  committed, 
Loveden  v.  Lovedcn,  2  Hagg.  C.  R.  1 ;  Hamerton  v.  Hamer- 
ton,  2  Hagg.  E.  R.  S ;  Grant  v.  Grant,  2  Carties  1 6 ;  Bishop 
on  M.  and  D.,  §  422. 

The  first  of  the  chain  of  circumstances  relied  upon  in  proof 
of  the  general  cohabitation  of  the  parties,  is  the  length  and 
frequency  of  the  doctor's  visits  to  her. 

This  evidence  covers  a  period  of  about  five  months,  from 
the  last  of  March,  or  first  of  April,  to  the  first  of  September, 
1860,  during  the  period  that  the  complainant  lived  in  his 
brother  Prosper's  liouse,  on  the  opposite  side  of  the  road,  and 
a  short  distance  from  his  mother's.  Five  witnesses  testify 
upon  this  point.  One  of  these  witnesses,  John  Simpson, 
speaks  of  Dr.  Titsworth  visiting  the  house  frequently  between 
the  first  of  January  and  March.  He  thitd'Cs  the  complainant 
removed  into  the  house  on  the  first  of  January.  In  this  he 
is  clearly  mistaken.  The  complainant  did  not  remove  into 
his  brother's  house  until  late  in  March,  a  few  days  before  the 
return  of  his  mother  from  Georgia.  So  she  testifies,  and  so 
the  evidence  in  the  case  clearly  shows.     After  the  first  of 


134  CASES  IN  CHANCERY. 

Berckmans  v.  Berckmans. 

April,  the  witness  kuevv  of  his  making  from  five  to  ten  visits 
of  from  half  an  hour  to  an  hour's  duration.  Elizabeth  Ran- 
dall testifies  to  his  making  one  visit  of  three  hours  duration 
in  June.  John  Thys,  who  was  in  the  complainant's  employ 
as  a  laborer  four  or  five  days,  but  not  consecutively,  in  June, 
testifies  that  every  day  he  was  there,  the  doctor  visited  at 
Mr.  Berckmans'  between  nine  and  twelve  in  the  morning, 
while  Mr,  Berckmans  was  absent  from  home.  Jacob  V. 
Coles  and  Jane  Gvvynu  also  testify  to  frequent  visits,  some- 
times four  or  five  times  a  week,  sometimes  twice  a  day,  some- 
times an  hour  in  length,  and  on  one  occasion  over  two  hours. 
The  frequency  and  length  of  these  visits,  especially  in  the 
absence  of  the  husband,  without  explanation,  would  certainly 
justify  grave  suspicions.  But  it  is  shown  that  Mrs.  Berck- 
mans was  confined  with  her  second  child  on  the  third  of 
April,  when  her  eldest  was  but  little  more  than  a  year  old, 
that  after  a  partial  recovery  she  suffered  a  relapse,  and  that 
she  continued  a  long  time  in  delicate  health,  having  the  care 
of  two  voung  children,  without  a  professional  nurse.  It  ap- 
pears from  the  doctor's  account  book,  which  is  produced  in 
evidence,  that  he  visited  Mrs.  Berckmans  twice  in  March, 
previous  to  her  confinement,  that  he  delivered  her  of  a  child 
on  the  third  of  April,  that  during  the  month  of  April  his 
professional  visits  were  very  frequent,  and  that  they  con- 
tinued with  greater  or  less  frequency  during  the  summer. 
None  of  his  visits  were  made  secretly  or  at  unusual  times. 
The  only  circumstance  of  suspicion  is  that  they  were  long, 
and  generally  made  during  the  husband's  absence.  It  appears 
that  the  husbantl  was  absent  daily  at  the  seminary,  from 
nine  to  twelve  in  the  morning,  and  as  some  of  the  witnesses 
Bay,  in  the  afternoon  also.  The  visits  were  most  frequently 
made  in  the  morning  during  a  portion  of  the  day  usually  de- 
voted to  professional  visits.  It  should  therefore  excite  no 
remark,  that  it  occurred  during  the  absence  of  the  husband 
from  home.  The  professional  visits  of  physicians  to  the 
families  of  men  of  business  are  probably,  in  a  great  majority 
of  cases,  made  when  the  father  of  the  family  is  absent. 


FEBIlUxVRY  TERM,  1863.  135 

Berckmans  v.  Berckraan?. 

The  second  ground  of  suspicion  is,  that  there  were  re- 
peated interviews  between  the  defendant  and  Dr.  Titsworth 
at  her  mother's  house  in  the  evening,  that  siie  was  once  or 
twice  at  his  office,  and  that  he  accompanied  her  home  on 
several  occasions,  lier  husband  not  being  present.  This  oc- 
curred between  Saturday,  the  first  of  September,  1860,  when 
the  complainant  and  his  wife  removed  from  his  brother's 
house  to  his  mother's,  and  Wednesday,  the  nineteenth  of 
September,  wdien  the  wife  left  her  husband.  Tlie  evidence 
upon  this  point  is  furnished  by  the  testimony  of  Dominic 
Canatta,  an  intimate  friend  of  the  husband,  who  as  he  alleges, 
for  his  own  satisfaction,  sometimes  alone,  antl  sometimes  in 
company  with  tiie  husband,  was  engaged  in  watching  the 
movements  of  the  wife.  This  surveillance  of  the  wife  was 
instituted  by  the  witness  in  consequence  of  information  de- 
rived from  the  husband.  There  is  no  room  for  doubt,  that  all 
the  facts  within  the  knowledge  of  the  witness  were  communi- 
cated to  the  husband,  and  yet  the  fi-ieudly  relations  of  the 
husband  and  the  doctor  continued  until  after  the  wife  had 
left  her  husband.  If  the  conduct  of  the  wife  in  this  regard 
was  not  entirely  satisfactory  to  the  husband,  and  if  she  was 
not  fully  justified  by  the  reasons  which  she  assigns  for  it, 
which  I  do  not  propose  to  examine  in  detail,  it  is  at  least  ap- 
))arent  that  there  was  nothing  in  her  conduct  which  furnished 
to  the  husband,  or  which  can  furnish  to  the  court,  any  satis- 
factory evidence  of  her  guilt.  Every  fact;  stated  by  the 
witness,  except  so  far  as  it  is  contradicted  or  satisfactorily  ex- 
plained by  other  evidence,  is  quite  consistent  with  the  purity 
and  innocence  of  the  wife. 

The  third  ground  of  suspicion  is,  examinations  of,  and 
operations  upon  the  person  of  the  wife,  with  electro  magnet- 
ism and  with  instruments,  in  September,  October,  and  No- 
vember, 1859.  The  details  of  these  operations  have  been 
introduced  into  the  evidence  for  the  purpose  of  showing  that 
they  were  unnecessarily  gross;  being  indecent  liberties  with 
the  person  of  the  defendant,  and  indicative  of  sensual  feelings 
and  purposes  ou  the  part  of  the  physician,  and  that  it  was  in 


136  CASES  IN  CHANCERY. 


Berckmans  v.Berckmans. 


fact,  an  attempt  on  the  part  of  the  defendant  and  the  ])liysi- 
cian  to  j)rocure  an  abortion.  That  the  pliysician  and  the 
wife  knew  that  she  was  pregnant.  Tliat  it  was  probably  the 
result  of  their  illicit  intercourse,  and  that  they  feared  that 
the  appearance  of  the  child  might  furnish  some  evidence  of 
its  paternity.  The  two  theories  seem  quite  inconsistent.  If 
the  defendant  was  pregnant  by  the  physician,  if  there  is  the 
least  truth  in  the  evidence  of  Mrs.  Berckmans,  that  as  early 
as  June,  1859,  the  defendant  and  her  physician  were  in  the 
habit  of  adultery,  it  is  scarcely  credible  that  such  extra- 
ordinary expedients  would  have  been  resorted  to  for  the 
mere  gratification  of  sensual  feelings,  or  as  a  cover  for  in- 
decent liberties.  Nor  do  I  think  the  other  theory  at  all 
warranted  by  the  evidence.  The  fact  is,  that  the  evidence 
upon  this  point  was  furnished  by  Dr.  Titsworth  himself.  The 
nature  of  the  operation  appears  by  the  charges  upon  his  book 
of  account,  for  the  recovery  of  which  a  suit  had  been  instituted, 
and  a  copy  of  the  account  filed  with  the  justice.  That  ac- 
count was  in  the  hands  of  counsel,  before  and  at  the  exami- 
nation of  the  witness.  These  operations  were  all  conducted 
at  the  request  of  the  husband,  and  in  his  presence.  This 
fact  is  ex[)ressly  sworn  to  by  the  physician.  If  unfrue,  it 
might  readily  and  effectually  have  been  contradicted  by  the 
husband.  The  account  given  by  the  physician  is,  that  he 
was  first  desired  to  ascertain  whether  the  wife  was  pregnant, 
and  that  fact  being  ascertained,  he  was  desired  to  produce 
an  abortion.  For  the  purpose  of  satisfying  the  parties,  he 
used  an  instrument  for  the  ostensible  purpose  of  procuring 
an  abortion,  but  without  any  real  intention  of  producing 
that  result.  Whatever  difficulties  may  lie  in  the  way  of  ac- 
cepting this  as  tlie  true  version  of  the  transaction,  they  ap- 
pear to  me  to  be  far  less  than  those  which  must  be  encountered 
by  adopting  the  theory  of  the  complainant's  counsel.  If  the 
doctor  really  wished  to  procure  an  abortion,  why  was  it  not 
effected?  And  if  the  wife  consented,  why  was  the  husband's 
concurrence  at  all  necessary?  It  may  be  added,  that  how- 
ever immoral  or   unjustifiable   the  act-  may   have   been,  the 


FEBRUARY  TERM,  1863.  137 

Berckmans  v.  Berckmans. 

desire  of  the  husband  and  wife  that  an  abortion  siionld  be 
procured,  does  not  appear  at  all  incredible.  The  wife  had 
very  recently  given  birth  to  a  child,  and  had  endured  great 
6ufferin<>:  durincj  her  confinement. 

But  the  most  significant  of  all  the  circumstances  relied  on 
as  evidence  of  the  wife's  guilt,  is  the  j)articipation  by  Dr. 
Titsworth  in  her  flight  from  the  husband's  house,  his  visiting 
her  in  New  York,  and  his  continued  intercourse  with  her 
after  her  return. 

There  is  little  or  no  dispute  as  to  the  facts  in  relation  to 
this  part  of  the  case.  The  real  question  is,  as  to  the  nature 
and  motives  of  the  fliglit  of  the  wife,  and  the  object  with 
which  the  assistance  was  rendered.  Was  it  the  flight  of  an 
adulteress  through  the  complicity  of  her  paramour?  Or  the 
flight  of  a  virtuous  wife  from  the  real  or  fancied  wrongs  of 
the  husband,  and  was  the  assistance  rendered  through  tho 
mere  promi)ting3  of  friendly  sympathy  ?  The  evidence  clearly 
shows  that  alienation  subsisted  between  the  husband  and 
wife,  from  causes  unconnected  entirely  with  the  wife's  rela- 
tions with  Di",  Titsworth.  Of  the  long  continued  existence 
of  these  diffiL'ulties,  whatever  may  have  been  their  origin, 
there  is  no  question.  Of  the  discordant  relations  between 
the  wife  and  the  mother-in-law  we  have  already  spoken.  It 
is  obvious  that  the  wife  was  very  reluctant  to  return  to  live 
under  the  roof  of  the  mother-in-law.  She  did  return  on 
Saturday,  the  first  of  September.  On  Sunday  Mrs.  Marsh, 
the  mother  of  the  wife,  visited  the  daughter  at  the  house  of 
Mrs.  Berckmans,  the  mother-in-law.  She  was  ordered  to 
leave  the  house,  and  on  her  refusal  to  do  so,  the  husband, 
with  the  aid  of  two  men  who  had  been  procured  for  the  pur- 
pose, attempted  to  remove  her  by  force.  The  wife  interfered 
for  her  mother's  protection.  A  violent  struggle  ensued,  in 
the  course  of  which  the  wife  and  the  mother  both  received 
injuries,  and  the  mother  was  compelled  to  leave  the  house. 
On  Monday,  tho  wife  communicated  to  the  doctor  her  inten- 
tion of  leaving  her  husband,  if  she  could  take  her  children 
with  her.     On  Tuesday  she  consulted  counsel,  and  repeated 


138  CASES  IN  CHANCERY. 

Berckrnans  v.  Berckmans. 

her  desire  to  leave  her  husband.  On  Wednesday  she  re- 
quested the  doctor  to  speak  to  a  magistrate  and  an  officer  to 
help  her  away  with  her  children,  complaining  that  she  was 
unable  to  stay  any  longer  in  the  house,  and  that  she  was 
afraid  of  her  life.  At  her  request  the  magistrate  was  spoktMi 
to,  a  carriage  procured,  and  the  f(jllowing  note  written  to  the 
wife : 

\Yednesday,  4  P.  M. 

Mrs,  B.  I  have  seen  Esq.  R.,  and  he  thinks  the  better 
way  for  you  is  to  go  unprepared,  that  is,  without  making  any 
disturbance  or  exciting  alarm,  and  upon  more  mature  reflec- 
tion, I  think  myself  that  will  be  best  and  certainly  the  easiest. 
For  instance,  let  Rickey  take  Gussie  riding  in  his  wagon,  and 
when  you  are  all  ready,  with  your  hoops  well  laden  with 
children's  clothing,  &c.,  then  tell  Rickey  to  draw  him  to  the 
front  gate,  and  Hennie  with  Nina,  quietly  but  quickly  *  *  * 
the  hot-house,  down  the  walk,  and  all  at  one  move  get  into  a 
carriage  all  ready,  and  *  *  at  Bonnell,  taking  the  first  by- 
street to  place  of  destination.  N.  B.  Don't  have  the  children 
dressed  different  from  common  daily  dress  ;  if  you  do  it  will 
foil  you.  Put  on  as  many  dresses  and  clothing  as  you  can 
each,  and  attach  the  children's  clothing  to  skirts.  Be  assured 
this  is  your  best  and  safest  course.  I  will  see  Dr.  Sherman 
or  Mrs.  S.,  and  have  them  drive  u[)  and  stop  at  Bonnell» 
after  the  first  train  arrives  this  P.  M. ;  and  then  if  E.  is  down 
town,  as  he  frequently  is,  avail  yourself  of  the  opportunity 
and  slip,  and  don't  delay  too  long  about  your  things,  but  go 
with  them  if  you  can,  but  without  them  if  you  can't.  A 
Friend.  In  the  margin  was  written  :  I  must  see  you  to  night, 
it  may  be  the  last  opportunity  in  a  long  while  ;  don't  fail. 
Let  no  one  read  this,  and  burn  it  immediately. 

In  accordance  with  this  arrangement,  the  wife  left  her 
husband's  home  on  the  nineteenth  of  September.  The  doc- 
tor saw  her  before  leaving  Plainfield,  prescribed,  and  gave 
medicine  for  her  children  who  were  sick.  The  wife  went  to 
New  York  with  her  children  and  remained  there  ten  days, 
then  returned  to  the  house  of  a  friend  near  Plainfield,  then  to 
her  mother's  house  where  she  continued  at  the  commencement 


FEBRUARY  TERM,  1863.  139 

Berckmans  v.  Berckraans. 

of  this  suit.  The  doctor  visited  her  twice  in  New  York,  as 
he  testifies,  at  the  request  of  the  motlier  of  the  defendant,  to 
see  her  sick  cliildren.  He  saw  her  again  after  her  return, 
and  continued  to  visit  her  up  to  the  time  of  bringing  the 
suit.  The  question  is  not  whether  the  defendant  left  her 
husband  for  a  justifiable  cause,  nor  whether  the  doctor  was 
justified  in  rendering  the  assistance  he  did.  Thesiraple  inquiry 
is,  whether  the  facts  afford  any  evidence  that  the  wife  was 
guilty  of  adultery,  and  that  the  doctor  was  her  paramour. 
I  am  clear  that  they  furnish  no  evidence  of  adultery  on  the 
part  of  the  wife,  or  of  any  guilty  complicity  on  the  part  of 
Dr.  Tits  worth. 

The  arrangements  for  her  departure,  the  consulting  of 
counsel,  the  a{)peal  to  a  magistrate,  her  manifest  anxiety 
respecting  her  children,  the  general  tone  of  the  letter,  are 
all  I  think  utterly  repugnant  to  the  idea  of  the  flight  of  an 
adulteress  from  the  home  of  her  husband,  at  the  procurement 
or  with  the  connivance  of  a  paramour.  The  letter,  the  arrange- 
ments and  circumstances  of  the  transaction,  afford  convincing 
])roof  that  the  wife  left  the  house  of  her  husband,  not  as  a 
criminal,  but  because  she  believed  (wiiether  right  or  v/rong 
is  immaterial)  that  she  had  justifiable  cause  for  her  departure. 
If  it  be  conceded  that  the  fligiit  of  the  wife  was  without  any 
justifiable  cause,  and  the  aid  and  counsel  afforded  by  Dr. 
Titsworth  an  unwarrantable  interference,  it  does  not  materi- 
ally aid  the  complainant's  case. 

There  are  other  facts  in  evidence,  but  they  do  not  ma- 
terially vary  the  aspect  of  the  question.  Evidence  of  a 
mother's  errors  or  indiscretions  can  surely  be  no  evidence  of  a 
daughter's  guilt.  Exposure  to  contagion  is  no  proof  of  the 
existence  of  disease,  though  it  may  render  its  occurrence  more 
probable.  So  exposure  to  moral  contagion  may  render  the 
existence  of  moral  guilt  more  probable,  but  it  will  not  justify 
the  court  in  abating  one  jot  of  the  evidence  requisite  to  prove 
actual  guilt.  It  is  no  province  of  an  earthly  tribunal  to 
visit  the  iniquities  of  parents  upon  their  children. 

Nor  is  the  conduct  of  Dr.  Titsworth,  as  a  witness  before 


140  CASES  IN  CHANCERY. 


Berckmans  v.  Berckmans. 


the  magistrate,  competent  evidence  of  the  wife's  guilt.  It 
was  coni[)etent  only  as  it  tended  to  affect  the  credibility  of 
his  testimony.  Parol  evidence  of  the  declarations  of  a  parti' 
ceps  crinmiis,  even  though  he  had  confessed  his  guilt,  would 
not  have  been  competent  evidence  against  the  defendant. 

The  case  in  some  of  its  aspects  is  not  free  from  difficulty, 
and  my  mind  has  not  been  free  from  doubt,  during  the  pro- 
gress of  the  investigation,  but  after  the  most  anxious  consid- 
eration I  feel  that  those  doubts  can  only  be  safely  resolved 
in  favor  of  the  defendant's  innocence. 

To  establish  the  existence  of  adultery,  tire  circumstances 
must  be  such  as  would  lead  the  guarded  discretion  of  a  rea- 
sonable and  just  man  to  that  conclusion.  It  must  not  be  a 
rash  and  intemperate  judgment,  moving  upon  appearances 
that  are  equally  capable  of  two  interpretations.  2  Haggard 
a  R.2;  2  Greeiil.  Ev.,  §  40 ;  Bishop  on  M.  &  D.,  §  423. 

The  facts  proven  must  be  such  as  cannot  be  reconciled 
with  probability  and  the  innocence  of  the  parties.  Dailey  v. 
Dailey,  WrigMs  R.  514. 

Mere  imprudencie,  indiscretion  or  folly,  is  not  conclusive 
evidence  of  guilt.  The  mind  of  the  court  must  be  satisfied 
that  there  was  an  intimacy  between  the  parties,  entirely  in- 
consistent with  the  duty  which  a  virtuous  wife  owes  to  her- 
self and  to  her  husband. 

Guided  by  these  ])rinci[)les,  I  do  not  feel  warranted  in  pro- 
nouncing the  defendant  guilty  of  adultery.  While  there  is 
much  in  her  conduct  to  regret  and  censure  as  indiscreet  and 
ill  advised,  I  do  not  find  in  the  evidence  satisfactory  proof  of 
guilt.  Where  the  conduct  of  a  party  admits  of  two  interj)re- 
tations,  equally  consistent  with  probability,  the  one  involving 
guilt  and  the  other  consistent  with  innocence,  the  rule  of 
evidence  as  well  as  the  dictates  of  justice,  require  that  the 
interpretation  should  be  favorable  to  innocence. 

The  burden  of  proof  is  upon  the  complainant,  and  it  must 
be  clear  to  justify  the  court  in  condemning  a  young  wife  to  a 
life  of  dishonor,  and  her  children  to  shame. 

Every  material  circumstance  relied  on  as  presumptive  evi- 


FEBRUARY  TERM,  1863.  141 

Berckraans  v.  Berckmans. 

dence  of  guilt,  appears  to  me  equally  susceptible  of  an  inter- 
pretation consistent  with  probability  and  with  innocence. 

There  is  force  as  well  as  justice  in  the  suggestion  of  counsel, 
that  while  each  circumstance  standing  alone  may  admit  of  ex- 
planation and  fail  to  command  our  belief  of  the  defendant's 
guilt,  yet  the  case  is  to  be  decided  upon  a  view  of  all  the  facts 
combined,  and  that  when  they  are  grouped  and  presented  in 
one  view,  they  lead  irresistibly  to  the  conviction  of  the  defend- 
ant's guilt.  I  have  re-read  and  considered  the  evidence  in 
that  aspect,  with  all  the  care  which  the  importance;  of  the  case 
demands.  And  while  it  may  be  admitted  that  there  are 
grounds  for  doubt  as  to  the  innocence  of  the  defendant,  there 
are  controlling  circumstances  which  preclude  a  conviction  of 
guilt,  to  which  I  will  briefly  advert. 

At  the  very  threshold  of  the  inquiry  we  meet  the  signifi- 
cant fact,  that  the  bill  filed  by  the  complainant  in  this  cause 
is  virtually  a  defensive  measure.  The  defendant  left  her 
husband's  house  with  two  infant  children,  the  eldest  eigliteen 
months  old,  a  })oor  and  almost  friendless  woman,  on  the 
nineteenth  of  Se[)tcmbcr,  1860,  and  found  shelter  under  her 
mother's  roof.  Within  two  months  she  filed  her  petition  for 
a  divorce,  on  the  ground  of  her  husband's  cruelty.  She  ap- 
plied for  alimony,  and  exhibited  jn'oofs  in  support  of  the  ap- 
j>lioation.  It  was  not  until  February  of  the  f;dlowing  year 
that  the  husband  awoke  to  a  sense  of  his  wife's  guilt  and  his 
own  wrongs,  and  filed  his  bill  for  relief.  All  the  material 
fo.cts  of  the  case  were  within  his  knowledge  before  the  wife 
had  commenced  proceedings  against  him.  His  mother"  had 
tokl  him  that  she  had  with  her  own  eyes  witnessed  the  adul- 
terous intercourse.  He  knew  of  the  wife's  visits  to  her 
mother,  and  of  the  company  in  which  she  returned  to  his 
house  on  several  evenings  previous  to  her  flight.  He  had 
himself  traced  Iier  movements  with  the  assistance  of  his 
Italian  friend.  He  knew  of  the  physician's  visits,  both  in 
Plainfield  and  in  New  York,  and  yet  he  forbore  to  take  a 
step  for  the  vindication  of  his  injured  honor.  In  the  inves- 
tigation of  a  wife's  guilt,  the  conduct  of  the  husband  is  al- 

VOL.  I.  I 


142  CASES  IN  CIIAN'CERY. 

Berckmansv.  Bcrckmans. 

ways  regarded  as  a  most  significant  circuimstance,  and  one 
v/hich  cannot  be  lost  sight  of.  So  long  as  there  is  reasonable 
dcabt  of  her  guilt,  or  a  ])lausible  ground  for  a  hope  of  her 
innocence,  the  iiiisband's  forbearance  is  both  excusable  and 
laudable.  But  when  he  holds  in  his  hands  what  he  claims 
to  be  satisfactory  proofs  of  her  guilt,  his  delay  to  prosecute  i3 
strong  evidence  in  the  wife's  favor. 

Rut  the  evidence  furnished  by  the  husband's  conduct  is 
not  merely  negative.  There  is,  after  the  abandonment  and 
return  of  the  wife,  the  strongest  direct  evidence  of  his  un- 
shaken confidence  in  her  virtue.  It  is  proven  that  after  the 
wife's  return  in  October,  when  she  went  to  his  house  to  take 
away  her  things,  that  they  had  an  interview,  that  he  said 
he  was  sorry  for  what  had  hapj)encd,  and  that  if  she  kept 
herself  true  to  him  they  might  live  together  after  the  affair 
was  settled.  True,  this  evidence  comes  from  the  lips  of  the 
wife,  but  it  is  not  contradicted  by  the  husband.  It  was  a 
fact  peculiarly  within  the  knowledge  of  the  parties  themselves, 
and  therefore,  if  untrue,  eminently  j)roj)er  that  he  should 
have  been  called  to  contradict  it.  Is  it  possible  that  the 
husband  who  uttered  that  language  could  have  believed  his 
wife  guilty  ?  Does  it  not  afford  the  strongest  incidental 
proof  of  a  fact  which  the  evidence  strongly  favoi-s,  that  the 
trouble  between  these  parties  has  really  been  occasioned  by 
the  indiscretion  and  unwarranted  interference  of  others  ? 

Some  of  the  evidence  relied  on  as  proof  of  criminal  inter- 
course points  to  a  period  of  time  when  the  wife  was  in  the 
last  stage  of  pregnancy  ;  other  portions  of  it  to  periods  when 
she  had  just  given  birth  to  a  child,  during  the  period  of  her 
confinement  or  during  severe  illness,  or  the  illness  of  her 
children,  or  when  she  was  laboring  under  natural  and  severe 
mental  anxiety  ;  periods  certainly  when  sensual  indulgence 
would  not  be  anticipated. 

Thft  evidence  covt^rs  a  period  of  four  and  a  half  years,  ex- 
tending from  the  marriage  of  the  parties  In  February,  1858, 
down  to  the  close  of  the  testimony  in  18G2.  It  covers  not 
onlv  their  entire    married    life,  but  the   period  of  eighteen 


rEBRUARY  TERM,  18C3.  143 

Berckmans  v.  Berckmans. 

months  diirlni^  tlte  pendency  of  the  suit  and  tho  taking  of  the 
testimony.  She  has  lived  much  of  that  time  in  the  house, 
and  under  the  eye  of  a  motlier-in-law  who  freely  avows  her 
suspicions  and  dislike  of  the  defendant.  She  has  been  sur- 
rounded by  servan*^,s.  She  has  been  watched  by  spies,  and 
yet,  exclusive  of  the  two  acts  sworn  to  by  the  mother,  and 
whicii  have  already  been  disposed  of,  there  is  evidence  of  no 
stolen  interview;  no  private  correspondence ;  no  amorous  or 
passionate  utterance;  no  exi)rcssi()n  of  affection;  no  licen- 
tious expression  of  lip  or  eye;  no  indecent  familiarity;  no 
personal  freedom  (aside  from  the  performance  of  professional 
duties);  no  proximate  act,  leading  up  to  the  commission  of 
the  crime.  I  think  it  may  be  affirmed,  however  injudicious 
or  indiscreet  her  conduct  may  be  deemed,  there  is  no  one  well 
authenticated  act  on  the  part  of  the  defendant,  inconsisteai; 
with  the  duty  which  a  virtuous  wdfe  owes  to  herself  and  to 
her  husband  ;  no  one  which  may  not  be  reconciled  with 
probability  and  with  innocence.  And  yet  the  theory  of  the 
com[»lainant  is,  that  during  months  or  years,  the  wife  and 
her  alleged  paramour  were  pursuing  a  course  of  shameless 
adultery. 

In  order  to  prove  adultery  by  circumstantial  evidence,  two 
points  are  to  be  ascertained  and  established;  the  opportunity 
for  the  crime,  and  the  will  to  commit  it.  Where  both  are 
established,  the  court  will  infer  the  guilt.  The  radical  diffi- 
culty with  the  com[)lainant's  evidence  is,  that  while  it  estab' 
lishes  the  one,  it  utterly  fails  to  prove  the  other. 

I  cannot  but  think  that  the  able  and  learned  counsel  of  tbe 
complainant,  in  their  conduct  of  the  evidence  and  argument 
of  the  cause,  felt  the  full  pressure  of  this  difficulty.  Failing 
to  prove  a  blemish  in  her  reputation  or  a  stain  upon  her 
viitue,  they  prove  that  her  mother  had  been  divorced,  tiiat 
the  visits  of  her  physician  are  too  frequent  and  too  long,  and 
that,  having  no  liither,  or  brother,  or  friend,  to  whom  she 
could  have  recourse,  she  resorted  to  that  [)hysician  for  coua- 
Bel  and  guidance,  when  she  was  about  to  fly  from  her  husband 
for  his  alleged  cruelty. 


144  CASES  IN  CHANCERY. 

Btirnham  v.  Dalling. 

In  view  of  the  whole  testimonv,  I  feel  constrained  to  say 
that  I  find  no  satisfactory  evidence  of  the  guilt  of  the  defend- 
ant, and  shall  decree  that  the  complainant's  bill  be  dismissed. 

Note.  Decree  unanimously  affirmed  by  the  Court  of  Ap- 
peals, at  March  Term,  1864. 

Cited  in  Black  v.  Black,  11  C.  E.  Gr.  432. 


Elbert  L.  Burnha::^  and  wife  vs.  Robert  Dalling. 

In  an  attempted  settlement  by  a  guardian  of  liis  account,  either  under 
flie  act  respecting  tlie  Orplians  Court,  Nix.  Dig.  575,  or  under  the  act  rela- 
tive to  guardians,  J^ix.  Dig.  341,  there  must  be  a  compliance  with  the 
requirements  of  the  statute,  to  render  the  account  exhibited  by  the  guar- 
dian prima  facie  evidence  of  its  correctness,  and  to  impose  upon  the  ward 
tiie  burden  of  proving,  or  showing  the  falsity  or  injustice  of  any  item  of 
the  account,  to  which  he  may  afterwards  take  exceptions. 


The  ease  was  heard  upon  bill  and  answer. 

Gilchrist,  for  complainants. 

The  order  of  the  Orphans  Court  Avas  void,  because  not 
parsuant  to  the  statute.     Gray  v.  Fox,  Saxton  260. 

Also  because  no  notice  was  given.  Nix.  Dig.  580,  §  24; 
Bessy.  Cole,  3  Zab.  116,  125;  Boulion  v.  SeotCs  Admr,  2 
Green's  Ch.  B.  231 ;  Fennimore  v.  Fennimore,  Ibid.  292. 

Until  final  account,  this  court  will  treat  accounts  as  open. 
Merselis  v.  Ex'rs  of  MerseUs,  3  Halst.  Ch.  B.  573 ;  Exton  v. 
Zule,  1  McCartcr  501. 

BarJcalow,  for  defendant. 

The  Chancellor.  The  bill  is  filed  by  husband  and  wife 
against  the  guardian  of  the  wife  for  a  discovery  and  an  ac- 
ocrant.  William  Bale,  the  father,  died  on  the  twenty-seventh 
of  September,  1849,  leaving  three  infant  children,  two  of 
whom  were  under  the  age  of  fourteen  years. 


FEBRU.\RY  TERM,  1863.  U5 

Biirnliaia  v.  Dalling. 

The  defeiulant  was  a[)[)oiiitt'(l  guardian  of  the  tliree  children 
by  the  Orphans  Ct)iut  of  Passaic;  county,  in  March,  1850. 
In  October,  1853,  during  the  minority  of  the  wards  and  while 
they  were  living-  under  his  guardianship,  the  guardian  filed 
his  account  in  tlie  surrogate's  office  of  the  county  of  Passaic, 
under  oath,  whereupon  the  following  order  was  made: 

Passaic  Oephans  Court,  October  Term,  1853. 

Robert  Dalling,  guardian  of  Eliza-"] 
beth  Bale,  a  minor  under  twenty-one  S- Intermediate  account 
years  of  age.  J 

The  surrogate  having  audited  and  stated  the  account  of 
the  above  named  guardian,  and  placed  the  same  on  the  files 
of  his  office  twenty  days  previous  to  this  time,  and  being 
now  reported  for  settlement,  the  same  is  in  all  things  allowed 
as  reported. 

The  only  question  submitted  for  decision  is,  whether  this 
settlement  can  be  regarded  as  prima  facie  evidence  of  the 
truth  of  the  charges  contained  therein,  so  as  to  render  it 
incumbent  upon  the  ward  to  prove  or  show  the  falsity  or  ia- 
justice  thereof. 

It  is  admitted  that  no  notice  was  given  of  the  settlement 
by  public  advertisement,  as  was  required  by  the  statute, 
upon  the  settlement  of  the  accounts  of  executors,  administra- 
tors, guardians  and  trustees,  in  force  at  the  date  of  the  set- 
tlement. 

Nor  was  any  citation  issued  to  the  wards  to  appear  at  the 
said  Orphans  Court,  as  required  by  law.  Nix.  Dig.  580,  §  24. 

It  is  obvious  that  the  attempted  settlement  of  the  guardian's 
accounts  was  not  made  in  compliance  with  the  requirementH 
of  the  statute,  and  that  the  decree  of  allowance  is  nugatory 
and  void,  as  against  the  wards. 

Nor  can  the  exhibition  and  filing  of  the  account,  and  the 
allowance  of  it  by  the  court,  be  of  any  avail  against  the  ward 
under  the  provisions  of  the  third  section  of  the  act  relative 
to  guardians.     Nix.  Dig.  341.     The  proceeding  was  uot  coa- 


146  CASES  IN  CHANCERY. 

Burnliam  v.  Dalling. 

ducted  in  accordance  with  the  reqiiircnicnt  of  that  act.  No 
notice  by  public  advertisement  or  citation  of  the  ward  is  re- 
quired. The  account  is  not  to  be  audited  or  stated  by  the 
surrogate.  No  decree  of  allowance  is  to  be  made.  There  is 
in  fact  no  settlement  of  the  account  within  the  meaning  of 
the  statutes  directing  and  regulating  the  settlement  of  the 
accounts  of  trustees  and  guardians.  The  account  of  the 
guardian  is  to  be  exhibited  under  oath,  to  be  examined  by 
the  court,  or  by  such  person  or  persons  as  they  shall  apj).')int, 
and  being  found  and  certified  or  reported  to  be  properly  and 
fairly  stated,  and  the  articles  thereof  to  be  su[)ported  and 
justified  by  the  vouchers,  and  the  report,  in  case  of  a  refer- 
ence, being  approved  and  confirmed  by  the  court,  is,  with 
such  certificate  or  confirmation,  to  be  entered  of  record  in  a 
book  to  be  kept  by  the  clerk  for  that  puri)t)se.  It  is  obvious 
that  the  ju'oceeding  in  the  Orjihans  Court  was  not  conducted 
in  reference  to  these  requirements.  There  is  no  certificate 
that  tlie  accounts  were  examined  by  the  court,  or  that  they 
were  found  to  be  pro})erly  and  fairly  stated,  and  the  items 
tliereof  supported  and  justified  by  the  vouchers.  Nor  is  there 
any  order  directing  it  to  be  recorded.  It  is  only  a  compli- 
ance with  these  requii'cnients  that  renders  the  account  thus 
exhibited  by  the  guartlian  prinui  faeie  evidence  of  its  correct- 
ness, and  imposes  upon  the  ward  the  burden  of  proving  or 
siiowing  the  falsity  or  injustice  of  any  item  of  the  account  to 
which  he  may  afterwards  take  cx(!eptions. 

In  taking  and  stating  the  accounts  of  the  guardian,  the 
attempted  settlement  in  the  Orphans  Court  not  having  been 
made  as  required  by  law,  cannot  be  regarded  as  j)resumptive, 
and  much  less  as  conclusive  evidence  of  the  truth  of  any  of 
the  charges  contained  therein. 

From  the  view  which  has  been  taken  of  the  case,  it  is 
unnecessary  to  express  any  opinion  upon  the  question  sug- 
gested upon  the  argument,  how  far  any  settlement  made  by 
a  guardian  of  his  accounts  during  the  minority  of  his  wards 
and  the  continuance  of  his  guardianship,  will  be  regarded  iu 
a  couit  of  equity  as  binding  upon  the  infants. 


FEBRUARY  TERM,  1863.  147 

Hopper  V.  Hopper. 


Garket  R.  Hopper  vs.  John  I.  Hopper. 

1.  Where  a  contract  is  certain  and  fair  in  all  its  parts,  and  for  an  ade- 
quate consideration,  and  the  party  seeking  its  enforcement  lias  hehi  him- 
self ready  to  perform  it  according  to  its  terms,  without  default  on  his  pari, 
and  has  been  prompt  in  his  application  for  relief,  a  court  of  equity  will 
decree  a  specific  performance  of  the  contract,  as  a  matter  of  course. 

2.  It  constitutes  no  objection  to  a  decree  for  specific  performance,  that 
the  application  is  made  to  enforce  the  payment  of  the  purchase  money,  and 
not  to  compel  a  delivery  of  the  title. 

3.  The  doctrine  is  well  established  tliat  the  remedy  is  mutual,  and  that 
the  vendor  may  maintain  his  bill  in  all  cases  where  the  purchaser  could 
6ue  for  a  specific  performance  of  the  agreement. 

4.  Mere  pecuniary  inability  to  fulfill  an  engagement  cjpes  not  discharge 
tlie  obligation  of  the  contract,  nor  does  it  constitute  any  defence  to  a  de- 
cree for  specific  performance. 

5.  Where  the  contract  is  not  capable  of  being  performed  by  reason  of 
some  difficulty  inherent  in  the  subject  matter  of  the  contract,  a  specific 
performance  will  not  be  decreed. 


The  case  was  heard  upou  the  pleadings  and  proofs. 
C.  II.  Voorhis,  for  complainant. 
Woodruff,  for  defendant. 

The  Chancellor.  The  bill  is  filed  by  a  vendor  to  enforce 
the  specific  performance  of  a  contract  for  the  purchase  and 
sale  of  real  estate.  Tiie  contract  is  in  writing,  and  bears 
date  on  the  tenth  of  June,  1862.  By  the  terms  of  the  con- 
tract, the  complainant  agreed  to  convey  to  the  defendant  a 
tract  of  land  containing  sixly  acres,  more  or  less,  for  the 
consideration  of  §3600,  five  hundred  dollars  to  be  paid  ia 
cash  on  the  fifteenth  day  of  July  then  next,  and  $3100,  the 
balance  of  the  purchase  money,  to  be  secured  by  bond  and 
mortgage,  payable  on  the  first  of  May  then  next,  with  interest 
from  the  first  day  of  November. 

The  contract  is  certain  and  fair  in  all  its  parts,  and  is  fot 


148  CASES  IN  CHANCERY. 

Hopper  V.  Hopper. 

an  adequate  consideration.  The  complainant  was  in  no  de- 
fault upon  his  part.  He  proffered  himself  ready  and  willing 
to  perform  the  contract,  according  to  its  terms.  He  tendered 
a  deed  and  the  possession  of  the  premises.  He  made  prompt 
application  for  relief  by  filing  his  bill  in  this  court.  Under 
such  circumstances  it  is  as  much  a  matter  of  course  for  courts 
of  equity  to  decree  a  specific  performance  of  the  contract  as 
it  is  for  a  court  of  law  to  give  daraaires  for  the  breach  of  it. 
Hall  V.  Warren,  9  Vesey  608;  Greenaway  v.  Adams,  12 
Vesey  395,  400;    I  Stonfs  Eq,  M\,  §  751,  §  771. 

It  constitutes  no  objection  to  the  relief  prayed  for,  that  the 
application  is  made  by  the  vendor  to  enforce  the  payment  of 
the  purchase  money,  and  not  by  the  vendee  to  com{)el  a 
delivery  of  the  title.  The  vendor  has  not  a  complete  remedy 
at  law.  Pecuniary  damages  for  the  breach  of  the  contract 
is  not  what  the  complainant  asks,  or  is  entitled  to  receive  at 
the  hands  of  a  court  of  equity.  He  asks  to  receive  the  price 
stipulated  to  be  paid  in  lieu  of  the  land.  The  doctrine  is 
well  established  that  the  remedy  is  mutual,  and  that  the 
vendor  may  maintain  his  bill  in  all  cases  where  the  purchaser 
could  sue  for  a  specific  performance  of  the  agreement.  Lewis 
V.  Lord  Lechmere,  10  3Iod.  503 ;  Walker  v.  Eastern  Counties 
Railway  Co.,  Q  Hare  594 ;  Fry  on  Spec.  Per/.,  §  23. 

The  only  ground  of  defence  suggested  by  the  answer  or  by 
the  evidence,  is  the  inability  of  the  defendant  to  perform  the 
contract  by  making  payment  of  the  $500,  agreed  to  be  paid 
on  the  fifteenth  of  July.  The  allegation  is,  that  he  entered 
into  the  agreement  in  good  faith,  expecting  to  get  the  money 
from  his  wife  to  make  the  payment  on  the  contract.  That  he 
Boon  after  ascertained  that  his  wife  would  not  let  him  have 
the  money.  That  he  had  it  not  himself  and  was  unable  to 
get  it  of  any  one  else,  and  was  therefore  unable  to  comply 
with  his  agreement.  It  appears  from  the  evidence  that  the 
wife  was  aware  of  the  husband's  intention  to  make  the  pur- 
chase, that  she,  with  her  husband,  visited  and  examined 
the  premises,  and  that  the  final  arrangement  for  the  execu- 
tion of  the  contract  was  made  in  her  presence  and  with  her 
approbation.     If  the  wife  afterwards  changed  her  miud  and 


FEBRUARY  TERM,  1863.  149 


Hopper  V.  Hopper. 


refused  to  advance  the  funds  to  aid  in  making  the  purchase, 
there  are  strong  reasons  for  believing  that  it  was  at  the  hus- 
band's instance  and  procurement.  But  if  the  fact  be  otherwise, 
and  the  truth  be  as  alleged  in  the  answer,  that  tlie  wife  re- 
fused to  advance  the  money  and  the  husband  was  unable  to 
procure  it  elsewhere,  it  constitutes  no  defence  to  the  bill.  The 
case  made  by  the  answer  is  simj)ly  inability  on  the  part  of  the 
defendant  to  meet  his  en<rauement.  Whether  he  relied,  at 
the  time  of  making  the  contract,  U})on  obtaining  the  means 
of  fulfilling  it  from  his  wife's  property,  or  from  a  third  party, 
or  from  his  own  resources,  can  make  no  difference.  Mere 
pecuniary  inability  to  fulfill  an  engagement  does  not  discharge 
the  obligation  of  the  contract,  nor  does  it  constitute  any  de- 
fence, either  at  law  or  in  equity,  to  a  decree  for  performance. 
The  complainant  is  entitled  to  his  decree.  Whether  the  de- 
fendant will  be  able  to  satisfy  the  claim  or  to  perform  the  de- 
cree, will  be  ascertained  hereafter.  Where  the  contract  is  not 
ca[)able  of  being  performed  by  reason  of  some  difficulty  in- 
herent in  the  subject  matter  of  the  contract,  as  where  the  title 
of  the  grantor  to  the  thing  to  be  conveyed  fails,  a  specific  per- 
formance will  not  be  decreed.  The  court  will  not  make  an 
order  obviously  nugatory.  But  this  is  not  to  be  confounded 
with  alleged  or  actual  inability  on  the  part  of  the  contracting 
party  from  want  of  pecuniary  means  to  fulfill  his  engagement. 
Nor  is  the  case  exposed  to  the  objection  which  lies  to  a 
decree  for  the  specific  performance  of  a  contract  made  by  a 
husband  to  convey  land,  the  title  to  which  is  in  the  wife,  or 
which  is  subject  to  her  dower.  There  the  very  strong  objec- 
tion exists  that  the  decree  of  the  court  lays  the  strongest 
constraint  upon  the  wife  to  part  with  the  title  to  her  land, 
which  the  wisdom  of  the  law  has  declared  shall  not  be  aliened 
without  her  free  and  voluntary  consent.  The  decree  of  the 
court  cannot  be  executed  without  the  wife  parts  with  the  title 
to  her  land.  It  operates  ex-nccessiiate  as  a  constraint  upon 
the  freedom  of  her  will.  1  Story's  Eq.  Jur.,  §  731,  734  ; 
Young  v.  Paul,  2  Stock.  401. 


150  CASES  IN  CHANCERY. 

Morris  County  Bank  v.  Eockaway  Manufacturing  Co. 

But  in  the  present  case  no  such  necessity  exists.  There  ia 
no  moral  impossibility  of  the  husband's  executing  the  contract 
without  the  aid  of  the  wife.  If  she  will  not  furnish  the  means, 
he  may  procure  it  elsewhere. 

The  complainant  is  entitled  to  a  decree. 

Cited  in  Locander  v.  Lounshcrry,  9  C.  E,  Gr.  421. 


The  Mokris  County  Bank  vs.  The  Rockaway  Manu- 
facturing Company. 

1.  A  lien  claim  filed  upon  peparato  buildings  and  upon  distinct  lots  of 
land,  witliout  apportioning  the  claim  and  designating  specilieully  the 
amount  claimed  ui)on  each,  is  not  a  compliance  with  the  statute  {Nix.  Dig, 
524),  and  must  be  piostponed  to  the  claims  of  other  encumbrancers. 

2.  Nor  does  it  remedy  the  objection,  that  it  appears  by  the  evidence  that 
the  claim  may  be  apportioned  between  the  difierent  buildings  in  propor- 
tion to  the  value  of  the  materials  used  in  the  construction  of  each  of  them. 

3.  A  claim,  not  tiled  according  to  the  requirements  of  the  statute,  con- 
etitutes  no  encumbrance  upon  the  premises. 

4.  A  j«(7(/mera(  a«  Zaw  entered  upon  the  lien,  the  lien  claim  not  having 
been  filed  pursuant  to  the  statute,  gives  it  no  priority  in  payment,  nor  any 
advantage  over  liens  upon  which  judgment  has  not  been  rendered. 


The  bill  in  this  cause  was  filed  to  foreclose  two  mortgages 
on  certain  real  estate  of  the  Rockaway  Manufacturing  Com- 
pany. The  main  controversy  was  in  regard  to  the  validity 
and  priority  of  sundry  lien  claims  for  labor  and  materials 
furnished  in  (he  erection  and  repairing  of  certain  buildings 
on  the  mortgaged  premises.  An  oj)inion  was  delivered  at 
February  Teriii,  1862.*  But  the  mind  of  the  court  being  in 
doubt,  as  to  whether,  under  our  statute,  a  lien  claim  could 
be  filed  to  include  several  buildings,  or  buildings  standing 
upon  distinct  lots  of  ground,  without  s[)ecirying  what  portion 
of  the  debt  is  claimed  as  a  lieu  upon  each  building,  the  Chan- 
cellor reserved  his  opinion    upon  that  question,  and  ordered 

*  1  McCarUr  189. 


FEBRUARY  TERM,  1803.  151 

Morris  County  Bank  v.  Rockaway  Manufactiirinj^  Co. 

a  reference  to  a  master  to  ascertain  and  report  the  aiiionnt  and 
])riority  of  the  respective  claims  and  encumbrances,  and  to 
report  more  definitely  the  situation  of  the  ditferent  buildings, 
the  manner  of  using  the  same,  and  the  proportion  of  laboi 
and  materials  furnished  by  the  several  lien  claimants  for  the 
res[)ective  buildings. 

The  master's  report,  made  in  pursuance  of  tlie  decretal  or- 
der, is  as  follows : 

In  pursuance  of  a  decretal  order  of  this  court  made  in  the 
above  cause,  and  bearing  date  on  the  nineteenth  day  of  Jtdy, 
in  tlio  year  of  our  Lord  one  thousanil  eight  hundred  and 
sixty-two,  by  which  it  was,  among  other  things,  ordered, 
atljudged,  and  decreed,  that  it  be  referred  to  the  subscriber, 
one  of  the  masters  of  said  court,  to  ascertain  and  report  the 
full  amount  due  to  the  defendant,  John  I.  Blair,  and  to  the 
complainants  on  their  several  mortgages  in  said  order  referred 
to  ;  also,  the  amount  due  to  the  defendant,  Julius  Decasseand 
the  other  claimants  mentioned  in  said  order  and  in  the  plead- 
ings in  said  cause,  whether  by  judgment  or  mechanics  liens; 
and  whereby  also,  the  said  master  was  directed  to  inquire  the 
relative  value  of  the  steel  furnace  and  buildings,  whereon  said 
Julius  Decasse  claims  a  specific  lien,  and  of  the  undivided 
half  of  the  steel  furnace  tract,  claiajed  as  the  curtilage  thereof, 
on  the  one  hand,  and  of  the  other  undivided  half  of  the  steel 
furnace  tract  and  the  other  buildings  thereon,  on  the  other; 
and  whereby  also,  the  said  master  was  directed  to  ascertain 
and  report  to  the  court  the  situation  of  the  different  proper- 
ties, mills,  furnaces,  and  buildings  embraced  within  and  upon 
the  said  rolling  mill  tract  and  steel  furnace  tract,  and  the 
manner  of  using  the  same,  whether  as  separate  properties  or 
factories,  or  as  one  factory  and  establishment,  and  also  in  what 
manner  and  proportion  the  several  lien  claimants  have  fur- 
nished labor  or  materials  for  the  several  pro[)erties,  buildings, 
&c. ;  and  that  the  saiil  master  do  make  a  separate  report  iu 
reference  to  said  matters,  &g. 

I  do  respectfully  report  to  the  Chancellor  tliat  I  have  been 
attended  by  the  solicitor  of  the  complainants  and  also  by  the 


152  CASES  IN  CHANCERY. 


Morris  County  Bank  v.  Kockaway  Manufacturing  Co. 

solicitors  of  several  of  the  defendants  in  said  cause,  and  that 
I  have  taken  the  depositions  of  witnesses  in  reference  to  the 
several  matters  so  referred  to  me,  which  depositions  are 
hereto  annexed,  and  after  hearing  and  considering  the  evi- 
dence taken  before  me,  and  also  examining  the  evidence  here- 
tofore taken  in  this  cause  and  the  exhibits  made  therein,  I 
do  respectfully  rej)ort,  that  there  is  due  to  the  defendant, 
John  I.  Blair,  at  the  date  hereof,  for  principal  and  interest 
on  his  said  bond  and  mortgage  mentioned  in  said  order,  and 
which  have  been  i)resented  and  offered  in  evidence  before  me 
in  his  behalf,  and  have  been  marked  by  me  Exhibits  A  and 
B,  the  sura  of  §2870.66,  as  will  more  fully  and  particularly 
appear  by  reference  to  Schedule  A,  hereto  annexed,  which  I 
desire  to  be  considered  as  a  part  of  this  report.  I  do  further 
report,  that  there  is  due  to  the  complainants  at  the  date 
hereof,  for  principal  and  interest  on  the  bond  and  mortgage 
held  by  them,  made  by  Freeman  Wood  and  wife  to  Theodore 
T.  Wood,  heretofore  otfered  in  evidence  in  this  cause,  and 
marked  Exhibits  \V  1  and  TF2,  the  sum  of  !J29,793.33,  as  will 
more  particularly  appear  by  reference  to  Schedule  B,  hereto 
annexed,  whicli  I  also  desire  to  be  taken  as  a  part  of  my  re- 
port. I  do  further  report,  that  there  is  due  to  the  complain- 
ants, at  the  date  hereof,  for  priacip:il  and  interest  on  the 
mortgage  given  by  The  Rockaway  Manufacturing  Com[)any 
to  the  complainants,  bearing  date  on  the  twenty-second  day  of 
February,  1856,  heretofore  offered  in  evidence  in  this  cause, 
and  marked  as  Exhibit  174,  on  the  part  of  the  complainants, 
the  sum  of  $35,438.93,  as  wiH  more  fully  and  particularly  ap- 
pear by  reference  to  Schedule  C,  hereto  annexed.  I  do  further 
report,  that  there  is  dtie  to  the  defendant,  Julius  Decasse,  on 
the  lien  claimed  by  him  in  his  answer  filed  in  this  cause,  ^ov 
principal  and  interest  at  the  date  hereof,  thesum  of  §4954.97, 
as  will  more  fully  ai)pear  by  Schedule  D,  hereto  annexed. 
And  I  do  further  report,  that  although  depositions  have  been 
taken  at  the  instance  of  the  complainants,  as  to  what  is  the 
proper  and  necessary  curtilage  to  the  steel  furnace,  on  whicli 
the  said  Julius  Decasse  claims  a  lieu,  I  have  not  regarded  that 


f EBRUAE-Y  TERM,  1863.  153 

Monis  ^.Joiinty  Bank  v.  Kockaway  Manufacturing  Co. 


part  of  suiJ  omcr  of  reference  which  directed  me  to  report  in 
what  manner  a:id  proportion  the  several  lien  claimants  have 
furnished  labor  or  materials  for  the  said  several  properties  and 
buildings,  as  applying  to  the  said  claim  of  said  Deeasse,  but 
have  regarded  said  order  as  sustaining  his  said  claim  of  lien 
as  made  by  him.  I  do  further  report,  that  there  is  due  at 
the  date  hereof  to  the  defendant,  Freeman  Wood,  upon  the 
judgment  recovered  by  him  against  The  Rockaway  Manufac- 
turing Company,  in  the  Circuit  Court  of  the  county  of  Mor- 
ris, on  the  twenty-sixth  day  of  October,  1857,  of  which 
judgment  an  exhibit  was  heretofore  made  in  this  cause 
(marked  Exhibit  C  29)  the  sum  of  $3489.98,  as  will  more 
fully  appear  by  reference  to  Schedule  E,  hereto  annexed,  and 
made  a  part  of  this  report.  And  I  do  further  report,  that 
said  Freeman  Wood  furnished  materials  for  the  steel  furnace, 
mentioned  in  said  order,  to  the  amount  of  $1528.25,  and  for 
the  rolling  mill  to  the  amount  of  $4862.76,  ii})on  which 
demands  generally  various  payments  were  made  by  The  Rock- 
away  Manufacturing  Company,  and  said  payments  were 
credited  generally  upon  said  account,  and  that  said  judgment 
was  obtained  by  said  Freeman  Wood  for  a  general  balance 
due  to  him  on  said  account.  And  I  do  further  report,  that 
in  my  opinion  it  is  just  and  equitable  that  the  judgment  of 
said  Freeman  Wood  should  be  paid  out  of  the  proceeds  of 
sale  of  the  said  .rolling  mill  and  steel  furnace  property  in  the 
same  proportion  as  he  originally  furnished  materials  for  said 
respective  properties,  and  claimed  liens  thereon,  and  that 
therefore  the  sum  of  $834.54  should  be  considered  a  lien  on 
the  steel  furnace  property,  and  be  paid  out  of  the  proceeds 
of  the  sale  thereof;  and  the  sura  of  $3489.98  should  bo  con- 
sidered as  a  lien  upon  the  rolling  mill  property  and  paid  out 
of  the  proceeds  of  the  sale  thereof.  I  do  further  report, 
that  there  is  due  at  the  date  hereof,  to  the  defendant,  Stephen 
Lyon,  upon  the  judgment  recovered  by  him  against  The 
Rockaway  Manufacturing  Company,  as  his  claim  of  lien  in 
the  Circuit  Court  of  the  said  county  of  Morris,  on  the  twenty- 
fifth  day  of  September,  1856,  the  sum  of  $616.57,  as  will 


154  CASES  IN  CHANCERY. 

Morris  County  B;ink  v.  Kockawa}'  Manufacturing  Co. 

more  fully  appear  hy  reference  to  Schedule  F,  hereto  annexed, 
and  made  a  part  of  this  report.  And  I  do  further  report  in 
reference  to  said  claim,  that  it  appears  by  the  claim  of  lien 
made  an  exhibit  in  this  cause  by  said  defendant,  that  the 
whole  amount  of  labor  done  and  [)erformed  by  him  for  The 
Rockaway  Manufictiiring  Comj)any,  at  the  said  steel  furnace 
and  at  the  said  rolling  mill,  amounted  to  $1109.47;  that 
several  payments  were  made  to  him  and  credited  generally 
on  his  said  account,  and  his  judgment  was  recovered  for  the 
general  balance  due  him  on  said  account;  and  that  it  does 
not  appear  from  said  lien  claim  of  wiiich  an  exhibit  was 
heretofore  made  in  this  cause,  nor  can  I  ascertain  from  the 
evidence  heretofore  taken,  or  from  the  depositions  taken  before 
me  and  hereto  annexed,  with  any  degree  of  certainty,  wdiat 
})roportion  of  the  amount  still  remaining  due  to  said  claimant, 
as  hereinbefore  reported,  is  due  for  labor  done  and  performed 
at  the  rolling  mill,  and  what  j)roportion  for  labor  done  and 
performed  bv  the  said  claimant  at  the  steel  furnace  building. 
I  do  further  report,  that  there  is  due  at  the  date  hereof,  to 
the  defendant,  Eliphalet  Sturtevant,  upon  the  judgnient  by 
him  obtained  on  the  seventeenth  day  of  November,  185G, 
against  the  Rockaway  Manufacturing  Company  in  the  Cir- 
cuit Court  of  the  county  of  Morris,  of  which  an  exhibit  has 
been  heretofore  made,  the  sum  of  $291.40,  as  will  more  fully 
appear  by  reference  to  Schedule  G,  hereto  annexed,  and  made 
a  part  of  this  re[)ort.  And  I  do' further  report  in  i-eference 
to  said  claim,  that  the  labor  and  materials  composing  it  v/ere 
furnished  for,  and  done  and  used  at  the  rolling  mill  property. 
I  do  further  report,  that  tb.ere  is  due  to  Cummins  McCarty, 
another  of  said  lien  claimants,  on  his  judgment  obtained 
af^ainst  The  Rockaway  Manufacturing  Com{)any  in  the  Mor- 
ris Circuit  Court,  on  the  twenty-second  <lay  of  October,  1857, 
and  heretofore  made  an  exhibit  in  this  cause,  the  sum  of 
§1082.88,  as  will  more  particularly  appear  by  reference  to 
Schedule  H,  hereto  annexed.  And  I  do  further  re[)ort  in 
reference  to  said  claim,  that  the  materials  constituting  the 
Bame  were  furnished  for  and  used  at  the   building  known  aa 


FEBRUARY  TERM,  1863.  155 


Morris  County  Bank  v.  E.ock:iw:iy  Manufacturing  Co. 

tlie  roll!  111^  mill  piMpsrty.  Ami  I  do  finllun-  rcpoft:,  that 
there  is  due  to  Jatnes  H.  Bruen,  another  of  said  lien  elaini- 
ants,  at  the  date  hereof,  on  two  judgments  recovered  by  him 
in  the  Monls  Circuit  Court  against  The  Rockaway  Manufac- 
turing Company,  on  the  seventeentli  (hiy  of  November,  1857, 
of  which  exhibits  have  been  heretofore  made  in  this  cause, 
the  sum  of  .^1830  26,  as  will  more  fully  appear  by  reference 
to  Sckrdtile  I,  hereto  annexed.  And  I  do  further  report  as 
to  said  claimant,  that  the  sum  of  §1568.77,  being  tin;  amount 
due  on  one  of  said  judgments,  is  for  labor  done  and  materials 
furnished  bv  the  said  claimant  for  the  rolling  mill  j)roperty, 
and  the  sum  of  $261.49,  the  amount  of  the  other  judgment, 
is  for  labor  done  by  said  claimant  and  materials  furnished  by 
him  for  the  steel  furnace  property.  I  do  i'urther  report,  that 
there  is  due  at  the  date  hereof  to  the  claimants,  William  R. 
Sayre  and  Marcus  Sayre,  on  their  claim  of  lien,  the  sum  of 
$1745  66,  as  will  more  fully  appear  by  reference  to  Schedule 
A",  hereto  annexed.  And  I  do  further  report  in  reference  to 
said  claim,  that  I  am  unable  to  ascertain,  either  from  said 
lieu  claiiu  heretofore  made  an  exhibit  in  this  cause,  or  from 
the  evidence  oifered  by  said  claimants,  what  proportion  of  said 
materials  mentioned  in  said  claim  were  furnished  and  |)rovided 
for  or  used  at  the  steel  furnace.  I  do  further  report,  that  there 
is  due  at  the  date  hereof  to  Jacob  L.  Fichter,  on  his  judgment 
obtained  in  the  Supreme  Court  against  The  Rockaway  Manu- 
facturing Company,  on  the  twenty-sixth  day  of  June,  1856, 
the  sum  of  §3129.47,  as  will  ap[)ear  by  Schedule  L,  hereto 
annexed.  I  do  further,  in  pursuance  of  the  tlirections  con- 
tained in  said  order  of  reference,  respc^ctfidly  report,  that  in 
my  judgment,  foundeil  on  the  depositions  taken  before  me 
and  hereto  annexed,  "  the  relative  value  of  the  steel  furnace 
and  buildings,  whereon  the  said  Julius  Decasse  claims  a  spe- 
cific lien,  and  of  the  undivided  half  of  the  steel  furnace  tract 
claimed  as  the  curtilage  thereof  on  the  one  hand,  and  of  the 
other  undivided  half  of  said  tract  on  the  other,"  (there  being 
no  buildings  on  said  tract)  is  five  to  one,  that  is  to  say,  that 
the   value   of   the   steel    furnace   and    buildings,    ou    which 


156  CASES  IN  CHANCERY. 

Morris  County  Bank  v.  Rockaway  Manufacturing  Co. 

said  lien  is  claimed,  together  with  one  half  of  the  land  de- 
scribed in  said  lien  claim,  claimed  as  the  curtilage  thereof,  is 
five  times  the  value  of  the  undivided  hiflf  of  said  tract.  I  do 
however  further  respectfully  report,  that  the  tract  or  lot 
mentioned  in  said  order  of  reference  as  lot  No.  3,  on  which 
said  steel  furnace  is  said  by  said  order  to  stand,  and  which 
was  sold  by  me  as  herein  before  reported,  for  the  sum  of 
$3050,  embraces  not  only  the  steel  furnace,  the  steel  furnace 
building,  and  the  land  on  which  they  stand,  and  which,  in 
and  by  said  lien  claim  of  said  Julius  Decasse,  is  claimed  as 
the  curtilage  thereto,  but  also  the  dwelling-house  and  lot 
specially  excepted  in  said  lien  claim,  and  a  lot  of  about  half 
an  acre  lying  on  the  west  side  of  the  road  mentioned  in  said 
lien  claim,  as  will  more  fully  appear  by  a  comparison  of  said 
lien  claim  with  a  diagram  of  the  premises  marked  as  Exhibit 
— ,  on  the  part  of  complainants.  And  I  do  further  report,  that 
in  my  opinion,  based  on  the  depositions  taken  before  me, 
valuing  the  whole  of  said  lot  No,  3  at  the  sum  of  $3050, 
the  amount  realized  therefor  at  public  sale,  tiie  sum  of 
$697.14  is  the  pro{)ortion  or  part  thereof  whicli  would  re- 
present the  value  of  said  dwelling-house  and  lot,  and  said  lot 
on  the  west  side  of  the  road,  leaving  the  sum  of  $2352.86 
as  the  part  of  said  proceeds  of  the  sale  of  said  lot  No.  3, 
arising  from  that  part  thereof  embraced  in  the  said  lien  claim 
of  said  Julius  Decasse.  In  obedience  to  that  part  of  said 
order  of  reference  directing  me  to  "  ascertain  and  rei)ort  to 
the  court  the  situation  of  the  different  properties,  mills,  fur- 
naces, and  buildings  embraced  within  and  upon  the  said 
rolling  mill  tract  and  steel  furnace  tract,  and  the  manner  of 
using  the  same,  whetljer  as  separate  pro[)crties  or  factories, 
or  as  one  factory  and  establishment,"  I  do  further  respect- 
fully report,  that  the  said  rolling  mill  tract  and  the  said 
steel  furnace  tract  are  separate  and  distinct  tracts,  lying 
about  one  eighth  of  a  mile  from  each  other,  and  separated 
entirely  by  the  land  of  a  third  person,  though  for  many 
years  past  they  have  been  owned  by  tlie  same  owner.  That 
upon    the    rolling    mill  tract  are  situated  the  rolling  mill, 


FEBRUARY  TERM,  1863.  157 

Morris  Count_v  Bank  v.  Rockaway  Manufacturing  Co. 

forge,  coal-house,  blacksmith  shop,  and  the  building  used  as 
an  office;  and  on  the  steel  furnace  tract  are  situated  the  steel 
furnace,  the  steel  furnace  dwelling-house,  so  called,  and  the 
canal  basin  and  dock.  That  the  business  carried  on  at  the 
rolling  mill  and  forge  has  no  necessary  connection  with  tliat 
carried  on  at  the  steel  furnace,  and  in  point  of  fact  until  The 
Rockaway  Manuflicturing  Com[)any  purchased  said  premises, 
the  business  carried  on  on  the  two  tracts,  though  conducted 
by  the  same  owner,  was  kept  entirely  separate  and  distinct, 
exce[)t  that  the  dock  was  used  for  the  convenience  of  both 
tracts,  as  it  was  also  used  for  landing  and  shipping  freight 
for  other  persons  in  the  neighborhood,  as  other  canal  docks 
were  used.  That  so  far  as  appears,  since  the  premises  were 
purchased  by  The  Rockaway  Manufacturing  Company,  the 
whole  have  been  regarded  as  one  establishment  and  used  as 
such,  though  the  steel  furnace  was  used  to  a  very  limited 
extent,  and  was  not  completed  when  the  company  failed. 

All  which  is  respectfully  submitted. 

Theo.  Little,  Master,  &g. 

Dated  January  3d,  1863. 

The  case  is  now  heard  upon  a  motion  to  confirm  the  mas- 
ter's report. 

Chandler,  for  complainants. 

Keasbey,  for  Decasse. 

IIcDonald,  for  Say  re. 

The  Chancellor.  The  case  is  not  essentially  changed  in 
any  of  its  material  aspects,  touching  the  rights  of  the  lien- 
holders,  by  the  evidence  adduced  before  the  master. 

The  master  reports  that  the  rolling  mill  tract  and  the 
steel  furnace  tract  are  separate  and  distinct  tracts,  lying  about 
one  eighth  of  a  mile  from  each  other,  and  separated  entirely 
by  the   land  of  a  third    person,  though    for   many  years  past 

Vol.  I.  K 


158  CASES  IN  CHANCERY. 

Morris  County  Bank  v.  Rockaway  Manufacturing  Co. 

they  liave  been  owned  by  the  same  owner.  That  upon  the 
rolling  mill  tract  are  situated  the  rolling  mill,  forge,  coal- 
house,  blacksmith's  shop,  and  the  building  used  as  an  office; 
and  on  the  steel  furnace  tract  are  situated  the  steel  furnace, 
the  steel  furnace  dwelling-house,  and  the  canal  basin  and 
dock. 

The  lien  claim  of  Sayre  describes  the  three  principal 
buildings  on  the  rolling  mill  tract  and  one  buililing  on  the 
steel  furnace  tract,  and  claims  a  lien  upon  all  the  buildings 
upon  both  tracts,  but  without  apportioning  his  claim,  or 
specifying  the  amount  of  materials  furnished  for  each  build- 
ing, or  for  the  buildings  upon  each  separate  tract. 

The  question  is  thus  distinctly  presented,  whether  a  lien 
claim,  purporting  to  be  filed  Uiider  the  provisions  of  the 
statute,  including  several  separate  buildings*  erected  upon 
separate  and  distinct  })ieces  of  land,  is  a  valid  claim  and 
within  the  requirements  of  the  law. 

I  do  not  see  upon  what  principle  the  claim  can  be  sustained, 
if  any  regard  be  had  to  the  letter,  spirit,  or  policy  of  the  act, 
to  the  rights  of  the  land  owner,  or  to  the  just  claims  of  other 
encumbrancers.  The  arguments  by  which  the  claim  is  sought 
to  be  sustained,  if  their  validity  be  admitted,  will  not  permit 
the  court  to  stop  short  of  declaring  that  the  claims  of  this 
highly  favored  and  meritorious  class  of  creditors,  is  of  so  high 
a  character  that  it  attaches  at  once  to  all  the  real  estate  of 
the  land  owner,  whatsoever  and  wheresoever  it  may  be. 
The  real  design  of  the  law  will  be  most  effectually  attained 
by  a  faithful  observance  of  its  plain  provisions.  The  statute 
in  terms  restricts  the  lien  to  the  building,  for  the  erection 
and  construction  of  which  the  work  was  done  or  the  materials 
furnished,  and  to  the  land  on  which  the  same  is  erected. 
The  first  section  of  the  act  declares  that  every  buililing  shall 
be  liable  for  the  paynient  of  any  debt  contracted  and  owing 
for  labor  performed,  or  materials  furnished,  for  the  erection 
and  construction  thereof,  which  debt  shall  be  a  lien  on  suok 
building,  and  on  the  land  whereon  it  stands,  including  the 
lot  or  curtilage  whereon  the  same  is  erected.     Nix.  Dig.  524. 


I 


FEBRUARY  TERM,  1863.  159 

Morris  County  Bank  v.  Rockaway  Manufacturing  Co. 

Almost  every  provision  of  the  statute  embodies  the  same  idea. 
It  limits  the  lien  to  the  building,  for  the  erection  and  con- 
struction of  which  the  debt  was  contracted,  and  the  land 
whereon  it  stands.  The  idea  appears  to  be  inseparably  inter- 
woven with  the  whole  fabric  and  texture  of  the  statute. 
The  policy  of  the  law  rests  upon  the  same  idea,  viz.  to  re- 
compense the  raochanic  or  materialman  the  value  of  the 
work  done,  or  materials  furnished,  in  the  construction  of  the 
building  whose  value  he  has  contributed  to  increase.  And 
in  the  French  law,  the  architects,  masons,  and  others  employed 
in  building,  are  privileged  creditors  only  to  the  amount,  of 
the  increased  value  resulting  from  the  work  which  they  have 
done.      Code  Napoleon,  Art.  2103. 

It  appears  to  me  that  the  insuperable  objection  to  permit- 
tinor  a  lien  for  materials  furnished  for  several  buildings  to  be 
included  in  one  claim,  with  no  specification  of  the  amount 
furnished  for  each,  is,  that  it  enables  the  lienholder  to  shift 
the  encumbrance  at  his  pleasure,  and  to  place  the  bulk  of 
the  claim  upon  any  building,  to  an  amount  far  exceeding  the 
value  contributed  to  such  building,  in  contravention  of  the 
j)lain  terms  and  manifest  policy  of  the  statute,  and  in  deroga- 
tion of  the  rights  of  other  parties.  If  the  property  all  con- 
tinued in  the  hands  of  the  same  owner,  the  practical  effect 
of  such  {)ractice,  though  it  might  prove  embarrassing,  might 
not  be  either  unjust  or  oppressive.  But  when  it  is  borne  in 
mind  that  in  most  cases,  as  in  the  present,  where  there  is  a 
contest  for  priority  of  encumbrances,  the  original  owner  is 
insolvent  or  not  interested  in  the  result,  and  that  the  con- 
test is  between  the  lienholders  themselves,  or  between  them 
and  equally  meritorious  classes  of  creditors,  it  is  difficult  to 
see  how  the  practice  can  be  permitted,  consistently  with  law 
or  with  justice.  The  phraseology  of  the  early  lien  law  of 
Pennsylvania,  passed  on  the  seventeenth  of  March,  1806, 
was  by  no  means  so  explicit  and  unequivocal  as  our  present 
law.  An  attempt  was  made  lunder  the  provisions  of  that  act 
to  fix  a  joint  lien  upon  three  houses,  built  at  the  same  time 
by  the  same  agent,  though  owned  by  diflPerent  persons.    Chief 


160  CASES  IN  CHANCERY. 

Morris  County  Bank  v.  Rockaway  Manufacturing  Co. 

Justice  Tilghraan,  in  delivering  the  opinion  of  the  court,  said  : 
''The  expressions  in  this  act  of  assembly  are  so  far  from 
being  clear  in  favor  of  a  joint  lien  that  they  must  be  twisted 
and  tortured  to  make  them  bear  the  appearance  of  it."  He 
refused  so  to  construe  the  act,  and  held  that  the  joint  claim 
was  unauthorized,  and  consequently  there  never  was  a  lien. 
Gorgas  v.  Douglas,  6  Serg.  &  R.  512.  The  opinion  was  con- 
fined in  terras  to  the  case  of  a  lien  upon  several  houses  owned 
by  several  persons,  though  most  of  the  reasoning  of  the 
eminent  judge  will  be  found  equally  applicable  to  the  case  of 
several  houses  owned  by  the  same  person.  The  question 
gave  rise  to  much  conflict  of  opinion.  It  was  subsequently 
held  in  Pennock  v.  Hoover,  5  Rawle  291,  that  where  the 
adjoining  buildings  were  owned  by  different  })ersons,  and 
erected  under  a  general  request,  the  mechanic  or  material- 
man might  file  his  claim  against  all  the  houses  jointly,  or  he 
might  apportion  it  among  them  and  file  a  separate  claim. 
The  legislature,  by  the  act  of  1831,  to  remove  the  doubts 
which  existed  touching  the  construction  of  the  law,  author- 
ized a  joint  lien  to  be  filed  by  the  materialman  on  adjoimng 
buildings.  But  the  inconveniences,  not  to  say  the  consequent 
injustice  of  the  practice,  was  such  that  the  legislature,  by  the 
act  of  1836,  required  the  materialman  who  files  a  joint  lien 
upon  several  buildings,  to  specify  the  amount  which  he  claims 
to  be  due  on  each  building,  or  in  default  thereof  his  claim 
should  be  postponed  to  other  lien  creditors.  The  provisions 
of  the  last  act  were  applied  and  enforced  in  Thomas  v.  James, 
7  Walts  &  Serg.  381. 

The  plain  language  of  our  statute  is  too  clear  to  admit  of 
being  (in  the  emphatic  language  of  Chief  Justice  Tilghraan) 
thus  twisted  and  tortured.  And  if  it  would  admit  of  it,  the 
experience  of  our  sister  state  may  serve  as  a  warning  against 
suffering  judicial  construction,  even  in  pursuit  of  a  fancied 
good,  to  move  in  advance  of  clear  legislative  enactment.  But 
the  filing  of  a  joint  lien,  both  by  judicial  construction  and 
express  legislation  in  Pennsylvania,  has  been  limited  to  adjoin- 
ing houses  erected   together   upon    the  same  block.     It  has 


FEBRUARY  TERM,  1863.  161 

Morris  County  Baak  v.  Kockaway  Manufacturing  Co. 

never  been  extended  to  separate  blocks ;  and  a  lieu  filed 
against  distinct  blocks  of  buildings  separated  by  streets,  is 
held  null  and  void  upon  its  face.  Young  v.  Chambers,  3 
Harris  267;   Goepp  v.  Garteser,  11  Casey  130. 

A  claim  filed  upon  separate  buildings  and  upon  distinct 
lots  of  land,  without  apportioning  the  claim  and  designating 
specifically  the  amount  claimed  upon  each,  is  not  a  compliance 
with  the  statute,  and  must  be  postponed  to  the  claims  of  other 
encumbrancers.  The  case  does  not  call  for  the  decision  of 
the  question,  whether  the  lien  would  have  been  valid  if  all 
these  buildings  had  been  upon  the  same  tract,  and  no  decisive 
opinion  is  intended  to  be  expressed  upon  that  point.  It  was 
stated  upon  the  argument,  that  that  question  has  been  passed 
upon  by  the  Chief  Justice,  and  other  Justices  of  the  Supreme 
Court  at  the  Circuits.  I  apprehend  it  will  be  found  that 
those  decisions  apply  only  to  the  cases  where  the  buildings 
are  within  the  same  curtilage,  and  mere  appurtenances  of 
the  main  building,  so  that  a  lien  upon  the  main  building 
would  of  necessity  include  the  others.  But  I  pur[)ose  hazard- 
ing no  opinion  which  may  conflict  with  any  deliberately  ex- 
pressed opinion  of  the  Justices  of  the  Supreme  Court;  re- 
garding it  as  highly  important,  that  upon  the  construction  of 
a  statute  so  widely  operative,  practitioners  should  not  be  em- 
barrassed, and  the  rights  of  parties  prejudiced  by  conflicting 
judicial  opinions. 

The  lien  claims  of  Freeman  Wood  and  of  Stephen  Lyon, 
are  not  among  the  })apers  placed  in  the  hands  of  the  court. 
It  was,  however,  stated  upon  the  argument  and  understood 
to  be  admitted,  that  they  are  both  joint  liens  upon  different 
buildings  upon  both  lots,  and  are  open  to  the  same  objection 
as  Sayres'  claim.  The  objection  is  not  remedied  by  the  fact 
reported  by  the  master  in  regard  to  one  of  the  claims,  that 
by  the  evidence  he  is  enabled  to  apportion  the  claim  between 
the  different  buildings  in  proportion  to  the  value  of  the 
materials  used  in  the  construction  of  each  of  them.  The 
radical  objection  is  that  the  claim  was  not  filed  according  to 
the    requirement  of  the  statute,   and    constitutes,   therefore, 


162  CASES  IN  CHANCERY. 

Anshutz  V.  Anshutz. 

under  the  provisions  of  the  law,  no  encumbrance  upon  the 
premises.  Nor  does  the  fact  that  judgment  at  law  is  entered 
upon  the  lien — the  lien  claim  not  having  been  filed  pursuant 
to  the  statute — give  it  any  priority  in  payment,  or  advantage 
over  liens  upon  which  judgment  has  not  been  rendered.  The 
order  of  priority  of  the  encumbrances  is  in  no  wise  affected 
by  the  judgment  to  enforce  the  lien. 

Cited  in  Jacobus  v.  Mut.  Ben.  Life  Ins.  Co.,  12  C.  E.  Gr.  G26. 


Maria  Anshutz  vs.  Philip  J.  Anshutz. 

1.  This  court  has  original  jurisdiction  in  the  matter  of  alimony,  only 
where  the  husband  without  any  justifiable  cause  abandons  his  wife,  or 
separates  himself  from  her,  or  refuses  and  neglects  to  maintain  and  pro- 
vide for  her, 

2.  The  abandonment  or  separation  on  the  part  of  the  husband,  as  well 
as  the  refusal  to  support  the  wife,  must  be  charged  in  the  bill  and  be  sus- 
tained by  the  proof. 

3.  The  court  will  not  grant  a  writ  of  ne  exeat  against  the  husband,  or  an 
injunction  to  restrain  him  from  alienating  his  property,  upon  the  mere  ap- 
prehension of  an  abandonment. 

4.  There  may  be  a  constructive  abandonment  or  separation,  while  the 
parties  continue  under  the  same  roof. 

5.  While  the  parties  continue  to  live  together,  no  measure  of  unkind  or 
harsh  treatment,  which  will  not  constitute  valid  ground  for  a  divorce,  will 
entitle  the  wife  to  alimony. 

6.  A  bill  for  alimony  independent  of  the  statute,  except  as  incidental 
to  some  other  relief  which  may  give  the  court  jurisdiction,  will  not  be  en- 
tertained. 


On  motion  to  dissolve  the  injunction,  and  to  set  aside  the 
writ  of  ne  exeat. 

Parher,  for  motion,  cited  2  Story's  Eq.  Jur.,  §  1422;  Nix. 
Dig.  224,  §  10  ;  Yule  v.  Yule,  2  SfocM.  138  ;  Denton  v.  Den- 
ton, 1  Johns.  Cli.  R.  364,  441  ;  Parker  v.  Parker,  1  Beas. 
105. 


FEBRUARY  TERM,  1863.  163 


Anshutz  V.  Anshutz. 


Runyon,  contra,  cited  2  Story's  Eq.  Jur.,  §  1423;  Miller 
V.  Miller,  Saxton  386. 

The  Chancellor.  The  bill  is  filed  by  a  wife  against  het 
husband  for  alimony,  for  the  suj)port  and  maintenance  of 
herself  and  her  children.  On  filing  the  bill,  a  writ  of  ne  exeat 
issued  against  the  husband;  and  also  an  injunction  to  re- 
strain him  from  removing  his  children,  or  from  conveying 
away  or  disposing  of  his  farm  or  other  property. 

The  defendant  having  answered  the  bill,  moves  to  set  aside 
the  writ  of  ne  exeat  and  to  dissolve  the  injunction. 

The  bill  is  filed  solely  for  alimony.  It  is  not  asked  for  as 
incidental  to  any  other  relief.  The  first  ground  relied  on  in 
support  of  the  motion  is,  that  there  is  no  equity  in  the  bill, 
and  that  the  case  made  does  not  justify  a  decree  for  alimony. 
The  only  case  where  the  statute  confers  upon  this  court  origi- 
nal jurisdiction  in  matters  of  alimony  is  where  the  husband, 
without  any  justifiable  cause,  abandons  his  wife  or  separates 
himself  from  her,  or  refuses  and  neglects  to  maintain  and 
provide  for  her.     Nix.  Dig.  224,  §  10. 

The  terms  of  the  statute  are  too  clear  and  explicit  to 
admit  of  doubt,  or  to  leave  room  for  latitude  of  interpreta- 
tion. There  must  be  an  abandonment  of  the  wife,  or  sepa- 
tion  from  her  without  justifiable  cause,  and  an  omission  to 
suitably  maintain  and  provide  for  her,  and  the  abandonment 
or  separation  on  the  part  of  the  husband,  as  well  as  the  re- 
fusal to  support  the  wife,  must  be  charged  in  the  bill  and 
be  sustained  by  the  proof.  I  had  occasion  to  examine  this 
question  in  the  recent  case  of  Ware  v.  Ware,  and  I  was 
then  satisfied,  as  I  still  am,  that  nothing  short  of  an  aban- 
donment or  separation  will  warrant  the  interference  of  the 
court.  The  decree  in  that  case  was  opened  mainly  on  the 
ground  that  the  fact  was  not  distinctly  charged  in  the  bill, 
nor  satisfactorily  established  by  the  evidence.  There  may 
be  an  abandonment  or  separation  within  the  sound  con- 
struction of  the  act,  while  the  parties  continue  under  the 
«ame  roof;    as  where  the  husband  utterly  refuses  to  have  any 


164  CASES  IN  CHANCERY. 

Anshutz  V.  Ansliutz. 

intercourse  with  his  wife,  or  to  make  any  provision  for  her 
maintenance.  He  may  seclude  himself  in  a  portion  of  his 
house  and  take  his  meals  alone,  or  board  elsewhere  than  in 
his  house,  and  thus  as  effectually  separate  himself  from  her 
and  refuse  to  provide  fur  her,  as  in  case  of  an  actual  aban- 
donment. But  in  whatever  form  it  may  exist,  there  must 
be  an  abandonment  or  separation  by  the  husband  from  the 
wife.  There  is  no  such  charge  in  the  bill,  nor  in  fact  any 
charge  that  theJiusband  refuses  to  maintain  and  provide  for 
her.  The  material  allegations  of  the  bill  are,  that  for  as 
much  as  a  year  past  the  husband,  without  just  cause  or  pro- 
vocation, has  been  in  the  habit  of  treating  her  unkindly  and 
addressing  her  with  violent,  insulting,  threatening,  and  ex- 
•ceedingly  profane  language,  and  also  refusing  to  provide  the 
complainant  and  her  children  with  such  necessary  clothing 
as  to  enable  them  to  appear  respectably,  although  possessed 
of  abundant  means  for  the  purpose;  and  that  for  much  of  the 
time  this  last  winter  he  has  refused  to  speak  to  her  and  even 
to  answer  her  when  she  addressed  him;  that  during  the  last 
two  or  three  months  she  has  been  apprehensive  of  personal 
violence  at  his  hands,  and  he  is  now,  as  the  complainant  has 
every  reason  to  believe,  and  does  believe,  concluding  his  pre- 
parations to  absolutely  abandon  her  and  her  children,  and  to 
leave  her  and  them  without  support,  or  the  means  thereof, 
and  that  he  designs  quickly  to  depart  out  of  this  state,  with 
that  view  and  for  that  purpose. 

It  is  obvious  that  none  of  these  charges  bring  the  case 
within  the  purview  of  the  statute.  While  the  parties  con- 
tinue to  live  together  no  measure  of  unkind  or  harsh  treat- 
ment, which  will  not  constitute  valid  ground  for  a  divorce, 
will  entitle  the  wife  to  alimony. 

There  is  no  allegation  of  a  neglect  or  refusal  to  support 
and  maintain  the  wife.  All  the  allegation  in  that  behalf  is, 
that  he  does  not  provide  the  complainant  and  her  children 
such  necessary  clothing  as  to  enable  them  to  appear  respecta- 
bly. The  case  made  by  the  bill  is  not  within  the  provisions 
of  the  statute. 


FEBRUARY  TERM,  1863.  165 

Anshutz  V.  Aushutz. 

Nor  will  this  court  entertain  a  bill  for  alimony  independent 
of  the  statute,  except  as  incidental  to  some  other  relief  which 
may  give  the  court  jurisdiction.  Such  was  clearly  the  view 
of  the  master  in  Miller  v.  Miller,  Saxton  386. 

In  Yule  V.  Yule,  2  Stoclct.  138,  Chancellor  Williamson  de- 
cided that,  as  a  matter  of  principle,  the  court  ought  not,  ex- 
cept in  cases  authorized  by  the  statute,  to  decree  alimony  un- 
less as  incident  to  a  decree  for  divorce. 

And  in  Corey  v.  Corel/,  3  StocJd.  400,  .the  Chancellor, 
though  he  regarded  it  as  unnecessary  for  the  purposes  of  that 
case  to  decide  the  question,  explicitly  states  that,  as  the  law 
has  been  considered  in  this  state,  the  power  of  the  court  to 
grant  relief  is  confined  to  the  cases  mentioned  in  the  statute. 
In  that  case,  relief  was  granted  on  the  ground  that  the  hus- 
band persisted  in  continuing  a  separation,  of  which  the.  wife 
was  the  original  cause,  and  that  he  neglected  to  provide  for 
her  a  suitable  support  and  maintenance.  There  was  an  ac- 
tual separation  and  a  failure  to  support  the  wife,  which 
brought  the  case  directly  within  the  terms  of  the  statute. 

All  the  reported  cases  will,  I  think,  be  found  to  be  brought 
within  the  statutory  provisions  ;  the  bill  charging  an  aban- 
donment or  separation  by  the  act  of  the  husband,  without 
justifiable  cause,  and  a  neglect  to  provide  for  the  wife. 

The  original  jurisdiction  of  courts  of  equity  to  grant 
alimony  as  an  independent  ground  of  relief,  is  by  no  means 
clearly  established.  And  where  the  authority  is  insisted 
upon,  no  broader  grounds  of  relief  appear  to  be.  relied  upon 
than  those  presented  by  the  statute  of  this  state.  2  Story's 
Eq.,  §1422,  1423,  a. 

But  it  is  urged  that  although  no  abandonment  or  separa- 
tion has  actually  taken  place,  yet  where  the  facts  and  circum- 
stances show  that  there  is  a  well  grounded  apprehension  that 
the  husband  is  about  to  abandon  his  wife,  to  dispose  of  his 
property,  and  to  remove  beyond  the  jurisdiction  of  the  state, 
the  court  will  interfere  to  prevent  it.  The  bill  is  manifestly 
framed  with  a  view  to  relief  in  this  form,  and  it  was  mainly 
upon  this  ground  that  the  writs  of  ne  exeat  and  injunction 


1 


166  CASES  IN  CHANCERY. 

Anshutz  V.  Anshutz. 

were  issued.  But  upon  reflection,  I  do  not  perceive  u[)oii 
what  [)riiiciple  this  exercise  of  the  power  of  the  court  can  be 
sustained.  The  court  has  no  power  to  compel  the  parties  to 
live  togetlier  or  to  restrain  a  separation.  The  wife  has  no  right 
to  the  interference  of  the  court  for  her  maintenance  until  the 
abandonment  or  separation  has  taken  place.  The  writs  were 
not  issuetl  to  protect  any  subsisting  right  or  interest  of  the 
wife,  but  on  the  more  grouud  of  apprehension  on  the  part  of 
the  wife  that  a  right  might  thereafter  be  created  which  would 
entitle  her  to  protection.  If  the  writs  are  continued  and  the 
husband  thereby  prevented  from  leaving  the  state  or  dispos- 
ing of  his  property,  it  is  clear  that  the  wife  cannot  have  a 
perpetual  injunction  or  any  other  relief  upon  the  merits  of 
her  case.  The  case  made  by  the  bill  affords  no  ground  for 
the  interference  of  the  court. 

If  the  case,  as  presented  by  the  complainant's  bill,  could 
admit  of  any  doubt,  it  would  be  effectually  dispelled  by  the 
answer.  It  fully  and  explicitly  denies  ail  intention  or  pur- 
pose on  the  part  of  the  defendant,  of  abandoning  his  wife  or 
of  failing  to  furnish  her  support  and  maintenance.  And 
while  it  admits  many  of  the  facts  and  allegations  contained 
in  the  bill,  it  shows  that  they  are  clearly  reconcilable  with 
his  rights  and  duties  as  a  husband  and  a  father,  and  exhibits 
in  a  strong  and  clear  light  the  danger  and  inexpediency  on 
the  mere  ground  of  api)rehended  wrong,  of  any  interference 
with  tlie  exercise  of  the  rights  of  the  husband  to  control  and 
manage  his  affiirs  as  shall  appear  to  himself  best  and  most 
for  his  own  interest. 

The  injunction  must  be  dissolved,  the  writ  of  7ie  exeat  dis- 
charged, and  the  bill  dismissed.  The  decree  will  be  made 
without  costs  as  against  the  wife. 


FEBRUARY  TERM,  18G3.  167 


Hutclieson  et  als.  v.  Peshine  et  als. 


John  A.  Hutcheson  and  others  vs.  John  S.  Peshine  and 

others. 

An  insolvent  debtor  having  been  arrested  in  Virginia,  and  being  in 
custody  by  virtue  of  a  capias  ail  satisfaciendum,  petitioned  for  his  discbarge 
under  the  insolvent  laws  of  that  state,  and  having  taken  the  oath  of  insol- 
vency, and  tendered  and  subscribed  a  scliedule  of  all  his  property,  real  and 
personal,  did  further,  in  pursuance  of  the  requirements  of  the  insolvent 
laws  of  said  state,  and  in  order  to  his  discharge  as  an  insolvent,  execute 
and  deliver  to  the  sherifT,  by  whom  he  was  Jield  in  custody,  a  deed  "for 
certain  real  estate  in  New  Jersey,  described  in  said  schedule.  Upon  a  bill 
filed  in  tiiis  court  to  compel  the  execution  of  the  trusts  upon  which  the 
6aid  deed  was  executed,     Held — 

1.  That  a  general  assignment  by  a  debtor,  of  all  his  real  and  personal 
property,  under  the  insolvent  laws  of  Virginia  or  of  any  other  state,  can 
pass  no  title  to  real  estate  in  New  Jersey. 

2.  The  deed  to  tlie  sheritr,  though  absolute  upon  its  fane,  was  merely 
ancillary  to  the  general  assingment,  burdened  with  the  same  trusts,  and  de- 
signed to  carry  the  assignment  into  efl'ect.  Independent  of  those  trusts, 
and  of  the  provisions  of  the  statutes  of  insolvency,  the  deed  is  without  con- 
sideration and  void. 

3.  The  deed  is  not  merely  fraudulent  as  against  subsequent  creditors, 
but  it  is  illegal  and  inoperative  as  a  transfer  of  title  to  real  estate,  and  llie 
trusts  under  it  will  neither  be  recognized  nor  executed  by  the  courts  of 
this  state. 

4.  This  court  will  not  administer  trust  funds  created  under  the  laws  of 
another  state,  and  growing  out  of  the  sale  of  real  estate  situate  in  New 
Jersey,  in  direct  conflict  with  the  laws  of  this  state,  to  the  prejudice  of 
creditors  residing  here. 

The  bill  charges  that  John  S.  Peshine,  one  of  the  defend- 
ants, having  been  arrested  upon  a  capias  ad  satisfaGienduin, 
issued  out  of  the  Circuit  Court  of  Henrico  county,  Virginia, 
upon  a  judgment  recovered  by  Elisha  Shipperson,  for  ^10,000, 
and  being  in  custody  by  virtue  of  tiie  said  writ,  on  the 
twenty-fourth  of  March,  1860,  in  pursuance  of  tiie  provision 
of  certain  statutes  of  the  state  of  Virginia,  set  out  in  the 
complainant's  bill,  petitioned  for  his  discharge  under  the  in- 
solvent laws  of  that  state,  and  having  taken  the  oath  of  in- 
solvency, and  tendered  and  subscribed  a  schedule  of  all  bis 


168  CASES  IN  CHANCERY. 

Hutcheson  et  als.  v.  Peshine  et  als. 

property,  real  and  personal,  (as  required  by  law),  did  further, 
in  pursuance  of  the  requirements  of  the  said  insolvent  law? 
and  in  order  to  his  discharge  as  an  insolvent,  execute  and 
deliver  to  John  A.  Hutcheson,  the  sheriff  by  whom  he  was 
held  in  custody,  a  deed  for  certain  real  estate  in  New  Jersey, 
described  in  the  said  schedule  of  his  real  and  j)ersonal  estate. 

The  bill  further  charges,  that  the  deed  thus  made  by  Pe- 
shine to  Hutcheson  was  executed,  acknowledged  an^  recorded 
in  the  clerk's  office  of  the  county  of  Essex,  according  to  the 
laws  of  this  state,  and  that  by  virtue  of  the  laws  of  Virginia, 
and  by  force  and  effect  of  the  said  deed,  the  said  Hutcheson 
became  seized  of  the  lands  and  premises  thereby  conveyed, 
subject  to  legal  prior  encumbrances,  in  trust  to  sell  and  dis- 
pose of  the  same,  or  of  so  much  thereof  as  may  be  necessary, 
and  to  apply  the  proceeds,  after  satisfying  what  may  be 
found  due  upon  such  prior  encumbrances,  to  tiie  payment  of 
the  judgment  recovered  by  Shipperson,  upon  which  the  writ 
of  capias  ad  satisfaciendum  was  issued,  and  to  refund  to 
Peshine  any  surplus  of  said  proceeds  which  may  thereafter 
remain.  That  by  the  judicial  construction  given  by  the  laws 
of  Virginia  to  the  statutes  under  which  the  said  deed  was  exe- 
cuted, the  sheriff,  by  virtue  of  the  said  conveyance,  became 
the  trustee  of  the  premises  thereby  conveyed  for  the  creditor 
at  whose  suit  the  debtor  was  imprisoned,  and  that  in  the  exe- 
cution of  the  said  trust,  he  is  subject  to  the  general  principles 
of  equity  ajiplicable  to  trusts  of  that  nature.  That  the  said 
deed,  though  an  absolute  conveyance  in  fee  simple,  is  in  the 
nature  of  a  mortgage  to  Hutcheson,  in  trust  to  secure  the 
pavment  of  the  judgment  recovered  by  Shipperson  against 
Peshine,  and  that  the  complainant  is  therefore  entitled,  as 
mortgagee,  to  have  the  premises  sold  under  the  direction  of 
this  court,  the  amount  due  upon  the  prior  encumbrances  as- 
certained and  paid,  and  the  balance  appropriated  in  pursuance 
of  the  trusts  under  which  the  conveyance  was  made. 

The  bill  prays  for  relief  accordingly,  and  that  a  receiver 
may  be  appointed  to  collect  the  rents  of  the  premises,  and 
apply  the  same  to  the  satisfaction  of  the  encumbrances. 


FEBRUARY  TERM,  1863.  169 

Hutcheson  et  als.  v.  Peshine  et  als. 

To  this  bill,  the  defendants,  Peshine  and  wife,  and  several 
of  the  creditors  of  Peshine,  who  are  prior  encumbrancers, 
demur. 

FreUngliuysen^  for  the  defendants,  in  support  of  the  de- 
murrer. 

1.  The  deed  to  Hutcheson  is  void  under  our  assignment 
law.  It  is  an  assignment  giving  preference  to  some  creditors 
in  exclusion  of  others.      Varnum  v.  Camp,  1  Green  o2(y. 

2.  A  deed  given  by  an  insolvent  under  the  laws  of  one 
state  for  land  lying  in  another,  is  void.  Burrill  on  Assign- 
ments, SS  5-6,  chap.  30;  Osborn  w.  Adams,  18  Pich.  245; 
Lessee  of  McCallougKs  heirs  v.  Roderick,  2  Hammond  [Ohio) 
380;  Rogers  v.  Allen,  3  Ibid.  488.  The  reason  is  that  laws 
of  one  state  should  not  control  property  in  another. 

3.  As  against  prior  encumbrancers,  Hutcheson  is  bound 
to  redeem.  He  can  not  ask  a  forced  sale.  He  stands  in  no 
better  position  than  mortgagor. 

4.  If  complainant  stands  in  better  position  than  mortgagor, 
it  must  be  by  virtue  of  the  law  of  Virginia,  which  this  court 
will  not  recognize.     7  Johns.  Ch.    R.  140. 

C  Parker,  for  the  complainants,  contra. 

I.  \Vill  the  deed  pass  the  lands? 

Why  should  it  not  ?  It  is  similar  to  deed  of  insolvent 
under  our  law. 

1.  It  is  formal.  2.  It  had  good  consideration.  3.  There 
was  no  duress;  the  imprisonment  was  lawful.  Rouvier's 
Laio  Did.,  "  Duress."" 

To  be  contrary  to  our  act,  the  assignment  must  be  general 
of  all  property  to  pay  all  creditors,  but  creating  preferences. 

The  act  expressly  permits  preference  o?  judgment  creditors. 
Here  a  judgment  creditor  only  is  preferred. 

We  admit  the  trust,  and  seek  the  aid  of  the  court  in  order 
to  its  discharge. 

If  valid  without  the  law,  is  it  weakened  because  the  law 
authorizes  it? 


170  CASES  IN  CHANCERY. 


Hutclieson  et  als.  v.  Peshine  et  als. 


The  cases  of  Frazier  v.  Fredericks,  4  Znb.  1G2,  and  Var- 
num  V.  Camp,  1  Green  326,  settle  the  law  of  this  case. 

II.  Are  the  comphiinants  entitled  to  the  relief  i)rayed  for? 

The  bill  charges  that  this  is  a  mortgage  in  trust  to  pay- 
debt.  We  are  entitled  not  simply  to  the  redemption,  but 
also  to  foreclosure  and  to  marshaling  of  assets. 

3Ir.  Parker  also  cited  Holmes  v.  Ihemsen,'4  Johns.  Ch. 
R.  483  ;  *S'.  C.  20  Johns.  R.  266 ;  Sclkriej  v.  Dewles  &  Seilt, 
2  Dow  230  ;  Beink  of  Scotland  v.  Cuthbert,  1  Rose  462  ; 
Plestoro  V.  Abraham,  1  Paige  237  ;  Byrne  v.  Walker,  7  Serg. 
&  R.  483  ;  Story's  Conflict  of  Laws  (Ath  ed.,  1852,)  §  411-18, 
note  to  page  685, 

3Jr.  Frelinghuysen,  in  reply. 

The  encumbrancers  have  a  right  to  demur.  They  have  a 
standing  in  this  court  to  insist  that  the  title  of  the  complain- 
ant is  invalid. 

An  examination  of  the  deed  shows  that  it  is  not  an  assign- 
ment of  specific  property  to  pay  a  specific  debt.  The  case  of 
Frazier  v.  Fredericks,  therefore,  does  not  apply. 

The  Chancellor.  It  is  clear  that  a  general  assignment 
by  a  debtor  of  all  his  property,  real  and  personal,  under  the 
insolvent  laws  of  Virginia  or  of  any  other  state,  can  pass  no 
title  to  real  estate  in  New  Jersey,  The  point  has  been  more 
than  once  expressly  adjudicated.  Lessee  of  llcCullough's 
heirs  v.  Roderick,  2  Hammond  380  ;  Rogers  v.  Allen,  3  Ohio 
488  ;   Osborn  v.  Adams,  18  Pick.  247. 

Tlie  rule  rests  not  only  upon  the  acknowledged  principle 
of  law  applicable  to  all  assignments,  voluntary  as  well  as 
legal,  that  the  title  and  disposition  of  real  estate  are  exclu- 
sively subject  to  the  laws  of  the  country  where  it  is  situated, 
which  alone  can  prescribe  the  mode  by  which  title  to  it  can 
pass  ;  but  upon  the  further  reason,  that  the  laws  of  one  state 
will  not  be  permitted  to  control  the  trust,  the  action  of  the 
trustee,  and  the  disposition  of  the  trust  property  in  another, 
the  subject  of  the  trust  being  real  estate. 


FEBRUARY  TERM,  1863.  171 

Hutclieson  et  als.  v.  Peshine  et  als. 

This  principle  a[)pears  to  be  recognized  by  the  statutes  of 
Virginia  under  which  the  conveyance  was  made.  They  pro- 
vide that  the  debtor  shall,  previous  to  his  discharge  from  im- 
prisonment, in  addition  to  the  general  assignment  for  the 
benefit  of  the  execution  creditors,  make  a  conveyance  to  the 
sheriff  of  all  his  real  estate  not  within  the  state  of  Virginia, 
upon  the  same  trusts  as  those  created  upon  the  general  assign- 
ment. 

It  is  under  a  deed  thus  executed,  and  which  the  bill  alleges 
is  made,  acknowledged,  and  recorded,  in  conformity  with  the 
laws  of  this  state,  that  the  complainant  asks  relief.  So  far 
as  the  formalities  of  execution  are  concerned,  it  will  be  as- 
sumed for  the  purposes  of  the  present  inquiry,  that  the  deed 
is  a  valid  instrument.  It  is  nevertheless  apparent  upon  its 
face,  that  the  deed  in  question  is  not  a  voluntary  conveyance. 
It  was 'executed  by  a  debtor  under  arrest  to  the  officer  in 
whose  custody  he  was  detained,  in  order  to  obtain  his  dis- 
charge under  the  insolvent  laws  of  Virginia.  The  execution 
of  the  deed  was  by  those  laws  a  prerequisite  to  his  obtaining 
his  discharge.  It  is  merely  ancillary  to  the  general  assign- 
ment, burdened  with  the  same  trusts  and  designed  to  carry 
the  assignment  into  effect.  Inde[)endent  of  those  trusts  and 
of  the  provisions  of  the  statutes  of  insolvency,  the  deed  is 
without  consideration  and  void  as  against  the  grantor.  It  is 
not  pretended  that  there  is  any  other  consideration  for  the 
conveyance.  The  sheriff  to  whom  the  conveyance  was  made, 
was  not  a  creditor  of  the  grantor,  but  a  mere  trustee. 

Then  will  this  court  lend  its  aid  to  carry  those  trusts  into 
effect?  It  is  impossible  to  distinguish  the  case  from  that 
of  an  assignment  under  the  insolvent  laws  of  another  state. 
The  deed  was  executed  for  the  purpose  of  carrying  the  trusts 
of  the  assignment  into  effect,  and  in  compliance  with  the  re- 
quirements of  the  statute.  In  Osborn  v.  Adams,  18  Pioh.  248, 
the  Supreme  Court  of  Massachusetts  say  :  "  We  can  take 
no  notice  of  a  trust  created  by  proceedings  under  the  statute 
of  the  state  of  Connecticut ;  we  can  no  more  take  notice  of  a 


172  CASES  IN  CHANCERY. 

Hntcheson  el  als.  v.  Peshine  et  als. 

trust  created  under  a  foreign  government,  than  we  can  of  a 
will  not  proved  nor  recorded  in  this  commonwealth." 

This  court,  therefore,  cannot  recognize  the  trusts  thus  created 
for  the  purpose  of  carrying  them  into  effect. 

But  aside  from  this  difficulty,  admitting  that  this  court 
might  recognize  the  trusts  thus  created,  it  is  obvious  that  the 
trusts  created  under  this  assignment,  are  in  direct  conflict  with 
the  policy  and  with  the  express  provisions  of  our  laws.  Our 
etatute  requires  that  every  conveyance  or  assignment  made 
by  a  debtor  of  his  real  or  personal  estate,  in  trust  for  his 
creditors,  shall  be  made  for  their  equal  benefit  in  proportion 
to  their  several  demands.  The  deed  in  question  is  made  in 
trust  for  the  payment  of  the  execution  creditors  only,  and 
then  in  trust  for  the  debtor  himself  It  not  only  gives  a  pre- 
ference to  the  execution  creditors  in  Virginia,  but  utterly 
excludes  others  from  all  participation  in  the  trust  funds.  It 
surely  cannot  be  required  that  this  court  should  administer 
trust  funds  growing  out  of  the  sale  of  real  estate  situated  in 
this  state,  in  direct  conflict  with  our  laws,  to  the  prejudice  of 
creditors  residing  here. 

It  is  urged  that  the  objection  to  the  validity  of  the  assign- 
ment does  not  lie  in  the  mouth  of  the  assignor,  nor  of  creditors 
having  liens  prior  to  the  assignment,  and  can  only  proceed 
from  some  creditor  who  is  prejudiced  by  the  assignment. 
This  is  not  so.  The  objection  is  not  merely  that  the  assign- 
ment is  fraudulent  as  against  subsequent  creditors,  but  that  it 
is  illegal  and  inoperative  as  a  transfer  of  real  estate,  and  that 
the  trusts  under  it  will  neither  be  recognized  nor  executed  by 
the  courts  of  this  state. 

In  Rogers  v.  Allen,  3  Hammond  485,  already  referred  to, 
in  taking  the  benefit  of  the  insolvent  laws  of  Pennsylvania, 
Allen  had  made  an  assignment  of  all  his  real  and  personal 
estate,  including  a  tract  in  the  state  of  Ohio,  for  the  benefit 
of  his  creditors.  The  trustees  made  sale  of  the  lands,  and 
the  purchaser  went  into  possession.  Allen,  the  assignor, 
brought  an  action  of  ejectment,  and  recovered.  A  bill  in 
equity  was  thereupon   filed   by  the   trustees  setting  out  the 


FEBRUARY  TERM,  1863.  173 

Hutcheson  et  als.  v.  Peshine  et  als. 

facts,  alleging  that  the  other  property  assigned  was  insuffi- 
cient to  pay  the  debts  of  Allen,  and  praying  a  decree  to  sell 
the  land  for  the  benefit  of  the  creditors.  The  demurrer  was 
sustained  and  the  bill  dismissed.  The  court  say,  as  no  title 
passed  by  the  deed,  we  do  not  see  any  principle  upon  which 
any  equity  can  be  created  to  be  enforced  here. 

This  case  is  in  no  wise  affected  by  the  principle  of  the 
decision  in  Frazler  v.  Fredericks,  4  Zab.  162.  That  was  a 
voluntary  assignment  of  personal  property,  and  governed  by 
principles  entirely  distinct  from  those  which  control  the  pre- 
sent inquiry. 

The  bill  must  be  dismissed. 

Note.  The  reporter  is  indebted  to  Joseph  P.  Bradley, 
Esq.,  for  a  copy  of  the  opinion  in  this  case,  delivered  May 
Term,  1861,  but  as  yet  unpublished.  Its  importance,  it  is 
believed,  will  be  found  to  justify  its  publication  at  this  time. 

Cited  in  Bentley  v.  Whittemore,  4  C.  E.  Or.  471. 

Vol.  I.  L 


C^SES 


AMUDGED  IK 


THE  COURT  OF  CHANCERY 

OF  THE  STATE  OF  NEW  JEESEY, 


MAY  TERM,  1863 


Gilbert  Schenck  and  others  vs.  John  G.  Schenck  and 
LiscoMB  R.  Titus,  executors  of  Garret  J.  Schenck,  de- 
ceased . 

1.  "Where  the  executors  of  an  executor  have  received  and  inventoried  as 
part  of  the  estate  of  their  testator,  a  trust  fund  held  by  him  at  his  death  in 
the  character  of  executor,  and  not  as  trustee,  and  have  settled  their  final 
account  jointly,  they  are  jointly  chargeable  as  executors,  with  the  balance 
thus  found  to  be  in  their  hands. 

2.  The  rule  appears  to  be,  that  if  a  part  of  the  assets  has  been  clearly  set 
apart,  and  appropriated  by  the  executor  to  answer  a  particular  trust,  he 
will  be  considered  to  hold  the  fund  as  trustee  for  the  trust,  and  no  longer 
as  mere  executor.  This  principle  is  applied  to  protect  the  interests  of 
cestui  que  trusts. 

But  how  far  it  will  avail  to  protect  the  executor  or  his  representatives — 
Query. 

3.  But  where  a  fund  is  not  treated  by  the  executor  as  a  trust  fund,  nor 
invested  according  to  the  provisions  of  the  will  creating  it,  but  is  used  by 
him  as  his  own  property,  or  invested  in  the  name  of  the  executors  of  his 
testator,  the  estate  of  such  executor  is  liable  therefor,  and  passes  into  the 
hands  of  his  executors  charged  with  the  payment  of  the  trust  fund.  Aa 
executors,  they  are  bound  to  account. 

4.  Upon  the  death  of  one  of  several  co-trustees,  the  office  of  trustee  will 
devolve  with  the  estate  upon  the  survivor,  and  ultimately  upon  the  heir 

174 


MAY  TERM,  1863.  175 


Sclienck  el  al.  v.  Schenck's  ex'rs. 


or  personal  representatives  of  the  last  survivor.  Trusts  of  real  estate,  upon 
the  death  of  the  trustee,  devolve  upon  his  heir-at-law;  trusts  of  personalty 
vest  in  his  executor  or  administrator. 

5.  The  probate  of  the  will  is  conclusive  evidence  of  the  executor's  ac- 
ceptance of  the  trust.  It  is  not  discretionary  with  tlie  executor,  whether 
he  will  or  will  not  act  as  trustee.  By  accepting  the  office  of  executor,  he 
becomes  ex-officio  trustee  in  the  stead  of  his  testator,  charged  with  all  the 
duties  and  responsibilities  of  the  office,  and  he  will  be  decreed  in  equity  to 
perform  the  trust. 

6.  An  executor  has  an  undoubted  legal  .right  to  leave  the  active  admin- 
istration of  the  estate  to  his  co-trustee,  but  neither  by  his  tacit  assent  to 
the  arts  of  his  co-truslee,  nor  by  the  actual  transfer  of  the  legal  title  to  the 
property,  can  he  acquit  himself  of  his  responsibility. 

7.  If  a  trustee,  by  his  own  negligence,  suffers  his  co-trustee  to  receive 
and  waste  the  trust  fund,  when  he  has  the  means  of  preventing  such  re- 
ceipt by  the  exercise  of  reasonable  care  and  diligence,  he  will  be  held  re- 
sponsible for  the  loss. 


P.  L.  Voorlices,  for  complainants. 

The  executors  received  tliis  money  either  as  executors  of 
surviving  executor  of  John  Schenck,  or  as  executors  of  sur- 
viving trustee,  under  will.      Legacy  is  to  executors  in  trust. 

Real  estate  is  by  the  will  directed  to  be  converted  into 
persynaK  It  is  regarded  in  equity  as  personal.  Scadders 
Exrs  v.  Vamirsdale,  2  Beas.  109  ;  Rinehart  v.  Harrison's 
Ex'rs,  Bald.  Ill  ;  Hill  on  Trustees  303. 

Wliere  there  are  several  trustees  appointed,  on  the  death 
of  one,  the  whole  goes  to  the  survivors  ;  on  the  death  of  the 
last  trustee,  it  goes  to  his  personal  representatives.  Willis  on 
Trustees  53-4. 

If  the  defendants  take  as  executors  of  executor,  we  are 
clearly  entitled  to  an  account.     Nix.  Big.  21 Q,  §  4. 

It  is  admitted  that  the  fund  is  in  the  hands  of  one  execu- 
tor;  when  in  the  hands  of  one  executor,  entitled  to  an  ac- 
count against  all.  Norton  v.  Tiirvill,  2  P.  W.  144  ;  2  Wil- 
liams on  Ex'rs  [ed.  1855)  1760,  note  r. 

Justice  will  not  be  done  by  a  simple  decree  for  account. 
There  must  also  be  a  decree  to  j)ay  over  the  fund.  Adams' 
Eq.  (1854)  226. 


176  CASES  IN  CHANCERY. 


Schenck  et  al.  v.  Schenck's  ex'rs. 


It  is  true  the  executors  never  qualified  as  trustees.  But 
being  really  such,  equity  will  not  allow  trust  to  be  lost  by 
death  of  one  of  them.     Hill  on  Trustees  171. 

By  the  settlement  of  their  joint  account  the  executors  ad- 
mit a  fund  of  $3000  in  their  hands,  for  which  they  are  jointly 
accountable.  The  defence  of  Titus  is,  that  he  thouglit  Schenck 
worth  $14,000,  but  before  the  suit  commenced,  he  had  full 
knowledge  of  his  insolvency.  These  circumstances  make  hiui 
responsible  for  trust  fund. 

As  to  when  trustees  are]  responsible.  3  Lead.  Cases  in  Eq. 
468. 

With  the  knowledge  that  John  G.  Schenck  was  insolvent, 
Titus  failed  to  invest  the  trust  money  properly,  but  sufifered 
him  to  take  it.     It  was  his  duty  to  have  j)rotected  that  fund. 

2  Story's  Eq.  Jur.,  §  1283  ;  Adam's  Eq.  59. 

By  omitting  to  have  the  fund  secured,  he  made  himself 
liable.  3  Lead.  Cases  in  Eq.  465-66-68-70 ;  Hill  o/i  Trus- 
tees 309;  2  Williams  on  Exrs  1548. 

Will  gives  express  directions  to  invest  trust  fund  in  real 
estate.  The  direction  is  binding.  3  Ijead.  Cases  in  Eq.  471-4. 
If  trustees  neglect  to  comply,  they  all  become  responsible. 

The  allegations  of  the  answer,  no  answer  to  the  charges  of 
the  bill ;  mere  confession  and  avoidance  ;  they  must  be  proved. 

3  Lead.  Cases  in  Eq.  470-1  ;  2  Lbid.  125. 

We  are  entitled  to  costs  against  the  trustees.  Warbass  v. 
Armstrong,  2  Stockt.  263. 

Mr.  Voorhees  further  cited  Wills  v.  Cooper,  1  Dutcher  161  ; 
Fennimore  v.  Feanimore,  2  Green's  Ch.  R.  296  ;  Laroe  v. 
Douglass,  2  Beas.  308 ;  Bellerjeaa  v.  Ex'rs  of  Kofis,  1  South. 
359  ;  Hill  on  Trustees  283, 7iote. 

Beasley,  for  L.  R.  Titus. 

The  whole  scope  of  the  bill  is  to  charge  Titus  jointly  with 
the  other  defendant  as  recipient  of  the  fund,  and  to  hold 
them  jointly  responsible  for  that  cause. 

The  whole  case  rests  on  the  charge  of  negligence.  Where 
is  the  neglii'-ence  to  charge  Titus  ?     It  is  said  he  knew  of  the 


MAY  TERM,  1863.  177 

Schenck  et  al.  v.  Schenck's  ex'rs. 

trust,  and  of  Schenck's  insolvency.  Tlie  affidavit  don't 
show  it. 

The  co-trustee  not  responsible  unless  from  acquiescing, 
standing  by  and  permitting  fraud. 

The  charge  is  clearly  against  the  defendants  as  trustees, 
not  as  executors.  The  question  under  tlie  bill  is  not  how 
far  the  executor  has  become  liable  by  settling  joint  account, 
but  how  far  the  trustee  has  become  liable  by  permitting  Ins 
co-trustee  to  take  the  fund. 

Mere  passiveness  will  not  make  him  liable.  But  if  trustee 
co-operates  to  put  trust  fund  into  the  hands  of  his  co-trustee, 
then  he  is  responsible  ;  not  for  mere  negligence. 

The  fact  that  the  defendants  are  sued  as  trustees  is  im- 
portant. It  shuts  out  the  question  of  estoppel  by  the  settle- 
ment of  the  joint  account  as  executors. 

The  com[)lainant  will  not  be  {)ermitted  to  set  up  decree  in 
Or[)hans  Court  as  an  estoppel,  inasmuch  as  he  opened  the 
inquiry  in  the  bill  as  to  who  did  receive  the  trust  fund.  The 
complainant  makes  the  inquiry,  and  Titus  answers  under 
oath  that  he  ditl  not  receive  it.     "■ 

Estoppel  is  stricfi  jiwis.  It  may  be  waived.  Complain- 
ant's opening  the  inquiry  is  in  fact  a  waiver. 

Estoppel  must  be  pleaded,  if  party  has  an  opportunity. 
It  then  becomes  matter  in  pais. 

The  case  has  been  argued  upon  the  assumption  that  on  the 
death  of  trustee,  the  ojice  devolves  on  his  representatives. 
Hill  on  Trustees  303.  The  doctrine  relates  to  property; 
not  to  the  office.     Leivin  on  Trustees  279. 

Executor  of  an  executor  is  bound  to  take  care  of  the  prop- 
erty  of  the  estate,  but  not  bound  to  execute  the  office  of 
trustee  held  by  the  executor.  This  idea  is  countenanced  by 
the  statute.     A'ix.  Big.  578,  §  13. 

Tlie  fund  in  question,  over  and  above  the  Ruidvle  Rea  note, 
being  mingled  with  the  general  estate,  was  properly  assets. 
The  cestui  que  trusts  could  have  no  preference  over  other 
creditors,  if  tlie  first  executor  had  died  insolvent.  3Ioses  v. 
Murgatroyil,  1  Johns.  Ch.  R.  128;  Kip  v.  Bank  oj  New 
York,  10  Johns.  R.  G3. 


178  CASES  IN  CHANCERY. 

Schenck  et  al.  v.  Schenck's  ex'rs. 

Mr.  BensJey  further  cited  2  Wll/lams  on  Ex'rs  1664; 
Adair  v.  Shaio,  1  Sch.  d'  Lef.  243  ;  Cook  v.  Cook,  Haht.  Dig. 
465;  Lnngford  v.  Gascoyne,  11  Vesey  334;  Bacon  v.  Bacon, 
5  /6/r/.  331  :  Sadler  v.  //o/>6.9,  2  i?ro.  CA.  i2.  115;  2  Story's 
Eq.  Jur.,  §  1281,  note  2 ;  Duchess  of  Kingston's  case,  2  Smith's 
Lead.  Cases,  444,  7io;e;  Kilheffer  v.  i/err,  17  ^Ser^.  <i*  i?.  319  ; 
Howard  v.  Mitchell,  14  il/ass.  242;  Livingston  v.  Combs, 
Coxe  42  ;  Swinburne  on  Wills,  part  6,  §  21  ;  iV/.r.  D//;.  581, 
i(27;  Goble  v.  ^7if//us.s,  1  Green's  Ch.  R.  66;  Black  v. 
Whitall,  1  Stockt.  584;  Fennimore  v.  Fennimore,  2  Green's 
Ch.  R.  296 ;  iV/.v.  D/^r.  578,  §  13. 

The  Chancellor.  John  Schenck,  late  of  the  county  of 
Hunterdon,  in  and  by  his  last  will  and  testament,  bearing 
date  on  the  twelfth  of  August,  1823,  among  other  things  gave 
and  bequeathed  as  follows  :  "I  do  give  and  bequeath  one 
other  ninth  part  of  the  said  residue  of  iny  estate  to  my  ex- 
ecutors hereinafter  named,  upon  this  special  trust  and  confi- 
dence, and  to  the  intent  and  purpose  that  mv  said  executors 
shall  place  the  same  out  at  interest  on  landed  security,  or 
such  security  as  the  Orphans  Court  may  aj)prove,  and  shall 
pay  the  interest  thereof  annually,  as  they  shall  receive  the 
same,  into  the  proj)er  hands  of  my  said  son  Gilbert,  during 
his  natural  life;  and  that  upon  his  death  the  interest,  if  any 
remaining,  and  the  principal  sum  shall  be  equally  divided 
between,  and  paid  to  his  children  that  may  be  then  living, 
and  in  case  any  of  them  shall  have  dieJ  leaving  issue,  such 
issue  to  take  the  parent's  share,  to  be  paid  to  the  said 
children,  if  of  age,  or  to  the  guardians  of  such  of  them  as 
may  be  minors,  as  soon  as  conveniently  may  be  after  my  son 
Gilbert's  death,  deducting  such  reasonable  expenses  and 
allowance  for  the  care  and  management  of  the  said  trust  as 
the  Orphans  Court  shall  allow, '^ 

On  the  fifth  of  April,  1854,  there  came  to  the  hands  of 
Garret  J.  Schenck,  the  sole  surviving  executor,  on  account 
of  the  princijxd  of  the  residuary  legacy  to  the  complainants, 
$2160.34.     Of  this  sum  $1101.38   was  paid  in  cash.     Tho 


1 


MAY  TERM,  1863.  179 

Schenck  et  al.  v.  Schenck's  ex'rs, 

balance  consisted  of  a  note  of  Runkle  Rea  to  the  executors 
for  $1058.96.  The  fund  remained  in  his  hands  unchanged 
until  his  death. 

By  his  will  he  appointed  his  son,  John  G.  Schenck,  and 
his  son-in-law,  Liscomb  R.  Titus,  the  defendants  in  this 
cause,  his  executors.  On  the  twenty-fourth  of  June,  1858, 
they  filed  an  inventory  of  the  estate  of  their  testator,  amount- 
ing to  $14,873.  At  September  Terra,  1859,  they  settled 
their  joint  final  account,  by  which,  after  charging  themselves 
with  the  amount  of  the  inventory,  they  deduct  therefrom 
the  sum  of  $1058.96  (the  amount  of  tiie  note  of  Runkle  Rea), 
as  trust  money  of  Gilbert  Schenck,  leaving  a  balance  of 
$13,814.32,  with  which  they  charge  themselves,  and  after 
deducting  all  disbursements,  including  commissions  and 
$9000  of  special  pecuniary  legacies,  there  remained  in  the 
hands  of  the  executors  a  net  residue  of  the  estate  of 
$3745.45.  The  complainants  seek  to  charge  the  defendants, 
jointly,  with  the  amount  of  the  trust  fund  in  the  hands  of 
their  testator  at  the  time  of  his  death. 

A  decree  pr'o  confesso  has  been  taken  against  John  G. 
Schenck,  one  of  the  defendants,  for  want  of  an  answer.  Lis- 
comb R.  Titus,  the  other  defendant,  has  answered,  alleging 
by  way  of  defense,  that  as  executor,  he  received  no  part  of 
the  funds  belonging  to  the  estate  of  his  testator,  but  that 
the  whole  assets  of  the  estate  were  received  and  administered 
by  his  co-executor,  John  G.  Schenck,  who  alone  is  responsible 
for  the  trust  fund  in  the  hands  of  his  testator. 

The  sole  question  to  be  decided  is,  whether,  upon  the 
ascertained  facts  of  the  case,  Titus  is  liable  for  the  trust 
I'f^icney  due  to  the  complainants,  or  whether  Schenck,  the  co- 
executor,  is  alone  liable.  If  the  fund  was  in  the  hands  of 
the  defendants'  testator,  Garret  J.  Schenck,  at  his  death  as 
executor  of  his  father,  and  not  as  trustee,  it  seems  clear 
that  the  defendants  are  jointly  liable  as  executors  of  the 
executor.  He  received  the  fund  from  the  estate  of  his 
co-executor,  and  gave  his  receipt  for  it  as  executor,  and  not 
as  trustee.      The  fund   continued    in    his  hands  unchanged 


180  CASES  IN  CHANCERY. 

Schenck  et  al.  v.  Schenck's  ex'rs. 

until  his  death.  He  did  not  invest  it  in  real  estate,  or  under 
the  direction  of  the  Orphans  Court,  as  required  by  the  will. 
The  Ruukle  Rea  note  was  given  to  tiie  executors  in  that 
character,  and  was  held  by  Garret  J.  Schenck,  the  surviving 
executor,  unchanged  until  his  death.  The  cash  received  by 
him  as  a  part  of  the  fund  was  mingled  with  his  own  estate, 
and  so  continued  when  his  estate  passed  into  the  hands  of  his 
executors.  He  did  nothing  whatever  to  distinguish  it  from 
the  bulk  of  the  testator's  estate.  The  estate  remained  after 
his  death  unchanged  by  the  defendants.  The  Runkle  Rea 
note  still  continues,  if  the  answer  is  to  be  relied  upon,  in  the 
name  of  the  executors  of  John  Schenck,  deceased.  The 
balance  of  the  fund  came  to  the  hands  of  tlie  defendants,  as 
part  of  the  property  of  their  testator.  It  was  included  in 
their  inventory  of  his  estate.  It  continued  in  their  hands 
until  the  final  settlement,  when  it  was  deducted  from  the 
amount  with  which  the  executors  had  charged  themselves. 
This  is  the  account  given  of  the  matter  by  the  answer,  and 
I  think  it  is  the  true  statement  of  the  facts.  The  complain- 
ants, when  filing  their  bill,  apjiear  to  have  supposed  that  the 
whole  amount  of  the  trust  fund,  including  tiie  Runkle  Rea 
note,  had  been  included  in  the  inventory.  And  this  con- 
clusion was  very  natural,  from  the  fact  that  the  precise 
amount  of  that  note  was,  upon  the  final  settlement,  deducted 
from  the  sum  with  which  the  executors  had  charged  them- 
selves. It  seems  probable  indeed,  that  the  surrogate,  or 
whoever  stated  the  account,  supposed  that  that  note  con- 
stituted the  entire  trust  estate,  for  it  is  deducted  as  the  trust 
money  of  Gilbert  Schenck,  retained  by  John  G.  Schenck,  one 
•of  the  accountants.  But  that  note  is  not  included  in  the  in- 
ventory, and  it  seems  to  be  conceded  upon  the  argument, 
that  it  is  still  in  existence  and  in  the  hands  of  one  of  the 
defendants.  The  deduction  of  the  amount  of  the  note,  there- 
fore, from  the  amount  of  the  inventory,  must  either  have 
.been  from  a  mistaken  supposition  that  the  note  was  included 
an  the  inventory,  or  that  it  covered  the  precise  balance  of 
cash  in  the  hands  of  the  executors„     But  it  did  not  cover  it. 


MAY  TERM,  1863.  181 

Schenck  et  al,  v.  Schenck's  ex'rs. 

Independent  of  the  Ilea  note,  and  of  tlie  interest,  there  was, 
at  the  date  of  the  settlement,  a  cash  balance  of  $1101.38  of 
the  principal  of  the  trust  fund  in  the  hands  of  the  executors. 
Regarding  the  trust  fund  in  the  hands  of  Garret  J.  Schenck 
at  his  death,  as  held  by  him  in  his  character  of  executor, 
there  is  nothing  in  the  case  that  can  relieve  the  defendants 
from  joint  liability  as  his  executors.  They  received  and  in- 
ventoried his  estate,  and  settled  their  final  account  jointly  as 
executors.  Under  such  settlement  and  decree,  the  executors 
are  jointly  chargeable  with  the  balance  thus  ascertained  to  be 
in  their  hands.  BeUerjeciu  v.  Ex'rs  of  Kotts,  1  South.  359; 
Fennimore  v.  Fennimore,  2  Green's  Ch.  H.  296  ;  Laroe  v. 
Douglass,  2  Beas.  308. 

But  it  is  urged  that  neither  the  facts  of  the  case,  nor  the 
frame  of  the  bill,  will  justify  a  decree  against  the  defendants 
as  executors  of  au  executor.  That  the  funds  were  in  the 
hands  of  Garret  J.  Schenck,  not  as  executor  of  John  Schenck, 
but  as  trustee  of  the  complainants,  and  that  the  defendants 
held  the  fund,  not  as  executors,  but  as  trustees. 

It  appears  by  the  will  of  John  Schenck,  that  the  fund  in 
question,  being  one  ninth  of  the  residue  of  his  estate,  was 
bequeathed  to  his  executors  as  trustees.  The  bill  alleges  that, 
after  they  had  settled  their  final  account  as  executors,  the 
fund  remained  in  the  hands  of  Peter  Voorhees,  one  of  the 
executors,  in  trust  for  the  complainants,  having  been  separated 
from  the  rest  of  the  estate  for  that  purpose.  That  after  the 
death  of  Peter  Voorhees,  the  fund  was  paid  by  his  represen- 
tatives to  Garret  J.  Schenck,  then  being  the  sole  surviving 
executor  of  John  Schenck,  and  was  received  by  him  as  the 
distributive  share  of  Gilbert  Schenck,  in  the  estate  of  his 
father,  left  as  a  trust  fund  in  the  hands  of  the  executors. 
The  rule  appears  to  be,  that  if  a  part  of  the  assets  has  been 
clearly  set  apart  and  appropriated  by  the  executor  to  answer 
a  particular  trust,  he  will  be  considered  to  hold  the  fund  as 
trustee  for  those  trusts,  and  no  longer  as  mere  executor.  MUl 
on  Trustees  {ed.  1857)  215,  237,  297,  364. 

This  principle  is  n2)[)lied  to  protect  the  interest  of  the  cestui 


182  CASES  IN  CHANCERY. 

Sclienck  et  al.  v.  Schenck's  ex'rs. 

que  trusts,  but  how  far  it  will  avail  to  protect  the  executor  or 
his  representatives  from  responsibility,  is  another  and  a  dif- 
ferent question. 

A  decisive  answer  to  this  view  of  the  case  would  seem  to 
be  that  Garret  J.  Schenck,  the  defendant's  testator,  did  not 
treat  the  fund  in  his  hands  as  trustee.  It  was  not  invested 
pursuant  to  the  will  of  John  Schenck.  It  was  either  used  by 
him  as  his  own  property,  or  invested  in  the  name  of  the  execu- 
tors of  John  Schenck.  His  estate  was  liable  for  the  money. 
It  passed  into  the  hands  of  his  executors,  charged  with  the 
payment  of  the  trust  fund.  As  executors,  therefore,  they  are 
bound  to  account. 

But  admitting  that  Garret  J.  Schenck  at  liis  death  held 
the  fund  in  the  character  of  a  trustee,  still  the  question  re- 
mains, are  not  his  executors  jointly  liable  for  the  trust  fund  ? 

Upon  the  death  of  one  of  several  co-trustees,  the  office  of 
trustee  will  devolve,  with  the  estate,  upon  the  survivor,  and 
ultimately  upon  the  heir  or  personal  representatives  of  the 
last  survivor.  Trusts  of  real  estate  upon  the  death  of  the 
trustee,  devolve  upon  his  heir-at-law.  Trusts  of  personalty 
vest  in  his  executor  or  administratt)r.  Hill  on  Trustees  175  ; 
Willis  on  Trustees  53  ;  Lewln  on  Trustees  205. 

Not  only  the  estate  but  the  office  of  trustee  is  devolved 
upon  the  executor.  The  probate  of  the  will  is  conclusive  evi- 
dence of  his  acceptance  of  the  trust.  It  is  not  discretionary 
with  the  executor  whether  he  will  or  will  not  act  as  trustee, 
By  accepting  the  office  of  executor  he  becomes  ex  officio  trustee 
in  the  stead  of  his  testator,  clfarged  with  all  the  duties  and 
responsibilities  of  the  office,  and  he  will  be  decreed  in  equity 
to  perform  the  trust.  Harvey  v.  Harvey,  Reports  Temp. 
Finch  363. 

By  accepting  the  office  of  executors,  these  defendants  be- 
came co-trustees  of  the  fund  in  question,  and  jointly  liable 
for  the  amount  which  came  to  their  hands.  Tiiere  came  to 
the  hands  of  the  executors  of  the  estate  of  their  testator 
over  $12,000,  charged  with  the  payment  of  this  trust  fund. 
They  paid  $9000  of  legacies,  and  there  remained  a  net  bal- 


MAY  TERM,  1863.  183 

Sclienck  et  al.  v.  Sclienck's  ex'rs. 

anee  in  their  hands  on  the  settlement  of  the  estate,  of  $3745.- 
45,  which  went  to  the  residuary  legatee.  The  first  duty  of 
the  executors  was  to  have  invested  the  trust  fund,  iu  pursu- 
ance of  the  instructions  of  the  will,  in  real  estate,  or  under 
the  direction  of  the  Orphans  Court.  The  one  half  of  it  was 
confounded  with  the  assets  of  the  testator,  and  the  balance 
was  suffered  to  remain  at  interest  upon  a  promissory  note 
without  security,  given  to  the  executors  of  the  original  tes- 
tator, which  may  or  may  not  prove  available.  As  an  excuse 
for  this  neglect,  one  of  the  trustees,  the  only  one  who  is  re- 
sponsible or  makes  defence,  says  he  received  none  of  the 
trust  funds,  and  he  deemed  it  unnecessary  to  participate 
actively  in  the  administration  of  the  estate,  as  his  co-trustee 
was  the  sole  residuary  legatee  and  was  worth  at  least  $14,- 
000,  after  the  payment  of  his  debts.  But  the  fact  that  he 
confided  in  the  pecuniary  ability  or  personal  integrity  of  his 
co-trustee,  was  no  justification  of  his  neglect  of  an  impera- 
tive duty.  The  answer  further  alleges  that  the  defendant 
did  not  contribute,  in  any  way,  to  put  the  trust  money,  or 
any  part  of  it,  in  the  possession  or  under  the  control  of  John 
G.  Schenck.  But  the  evidence  shows  not  only  that  the 
entire  estate  of  the  testator  came  to  the  hands  of  these  ex- 
ecutors jointly,  as  in  law  it  did,  but  that  they  exhibited  a 
joint  inventory  under  the  oath  of  both  executors,  showing 
that  over  $14,800  of  estate  had  come  to  their  possession, 
including  over  one  half  of  the  trust  fund  itself,  and  charged 
Vvith  the  payment  of  the  whole  of  it.  Mr.  Titus  not  only 
exhibited  this  joint  inventory  under  oath,  but  he  consented 
to  the  payment,  out  of  the  estate,  of  $9000  of  legacies.  He 
received  from  his  co-executor  $2000,  a  legacy  to  his  own  wife. 
He  settled  a  joint  account,  claiming  credit  for  the  payment 
of  all  these  legacies,  and  claiming  commissions  on  the  whole 
amount  of  the  inventory;  not  deducting  even  the  specific 
j)ortion  of  the  trust  estate  included  within  it.  As  executor, 
he  had  the  legal  title  to  this  property  and  the  right  to  con- 
trol it.  It  does  not  appear  that  his  co-executor  ever  denied 
his  right,  or  objected  to  his  control.     He  took  such  active 


184  CASES  IN  CHANCERY 

Schenck  et  al.  v.  Sclieiick's  ex'rs. 

part  in  the  management  of  the  estate  as  to  guard  his  own 
riglits,  and  secure  his  own  legacy  and  his  own  commissions. 
Had  he  tal-cen  the  same  care  of  the  trust  fund  committed  to 
his  keej)ing,  this  controversy  would  never  have  arisen.  He 
had  an  undoubted  legal  right,  as  executor,  to  leave  the  active 
admiiii.stralion  of  the  estate  to  his  co-trustee.  But  neither 
by  his  tacit  assent  to  the  acts  of  his  co-trustee,  nor  by  the 
actual  tratisfer  of  the  legal  title  to  the  property,  can  he  acquit 
himself  of  his  responsibility. 

If  a  trustee,  by  his  own  negligence,  suffers  his  co-trustee 
to  receive  and  waste  the  trust  fund,  when  he  had  tlie  means 
of  preventing  such  receipt  by  the  exercise  of  reasonable 
care  and  diligence,  he  will  be  held  responsible  for  the  loss. 
2  Story's  Eq.,  §  1273  ;  Adaias  Eq.  58,  59;  Laroe  v.  Doug- 
lass, 2  Beas.  308. 

It  is  sometimes  said,  that  the  aj){dication  of  this  principle 
of  law  operates  harshly  against  a  trustee  acting  in  good  faith. 
But  in  the  pi-esent  case,  I  think  there  is  no  ground  even  for 
that  suir2:estion.  Mr.  Titus,  wlien  he  accepted  the  executor- 
ship  of  the  estate  of  his  father-in-law,  knew  of  the  existence 
of  tliis  trust.  He  was  apprized  of  it  by  tlie  testator  before 
his  death.  Soon  after  the  death  of  the  testator,  iiis  son,  tlio 
co-trustee  and  brother-in-law  of  Mr.  Titus,  exchanged  with 
him  the  farm  devised  to  him  by  his  father's  will,  for  an  ex- 
tensive hotel  in  the  city  of  Trenton.  The  son  incurred  heavy 
expenditures  in  the  repairs  and  impi'oveiuents  of  the  pro- 
perty thus  acquired.  He  endwrked,  moreover,  largely  in  a 
business  which  Mr.  Titus  liimself  characterizes  as  hazardous. 
AVithin  three  years  from  liis  father's  death,  these  steps  led  to 
the  utter  insolvency  of  the  executor,  or  to  the  fraudulent 
concealment  of  his  property,  and  his  absconding  from  his 
creditors.  Most  of  these  steps  were  with  the  knowledge  of 
Mr.  Titus.  He  actetl  as  ids  agent,  book-keeper  and  coun- 
sellor in  many  of  his  affairs.  He  was  not  only  a  near  con- 
nection, but  on  terms  of  personal  intimacy  with  him.  It 
appears  from  his  evidence,  that  he  apprehended  his  insolvency 
before  it  occurred,  and  took  measures  in  the  hope  of  securing 


MAY  TERM,  1863.  185 

Rose  V,  Kimball. 

himself,  but  he  made  no  effort  to  secure  the  trust  fund  which 
had  been  committed  to  his  kee))ing. 

The  case  appears  to  me  to  be  clearly  one  in  which  the 
principle  should  be  inflexibly  maintained,  and  where  no  in- 
justice can  result  from  its  application. 

The  defendants  are  jointly  liable  for  the  trust  fund.  There 
must  be  an  account,  and  the  fnn<l  be  brought  into  court. 

The  complainants  are  entitled  to  a  decree  accordingly. 


JoHX  S.  Rose  vs.  Charles  B.  Kimball. 

1.  A  deed  of  assignment  endorsed  upon  a  mortgage,  though  duly  exe- 
cuted and  acknowledged,  passes  no  interest  to  the  assignee,  where  the  con- 
tract under  which  the  assignment  was  executed,  was  never  consummated, 
and  the  mortgage  never  delivered  to  the  assignee. 

2.  A  patty  taking  by  assignment  from  the  first  assignee,  with  construc- 
tive notice  of  prior  equities,  will  stand  in  no  belter  position  than  his 
assignor. 

P.  L.  Voorhees,  for  comj)lainant. 
Richey,  for  defendant. 

The  Chancellor.  Tiie  bill  is  filed  to  foreclose  a  mort- 
gage for  $4200,  given  by  Henry  S.  Harper  and  wife  to 
Spencer  Shoemaker,  and  by  Shoemaker  assigned  to  the  com- 
plainant. The  mortgage  is  dated  and  acknowledged  on  the 
fifteentii  of  February,  1856,  and  recorded  on  the  twenty-sixth 
of  the  same  month.  The  assignment  is  dated  and  acknowl- 
edged on  the  fifth  of  August,  1857,  and  is  recorded  on  the 
nineteentli  of  the  same  month.  There  is  no  question  as  to 
the  formal  execution  and  delivery  of  either  instrument.  The 
case,  as  made  by  the  bill,  is  very  clearly  established  by  the 
evidence. 

The  defence  is  that  Shoemaker,  the  mortgagee,  previous 


186  CASES  IN  CHANCERY. 

Rose  V.  Kimball. 

to  the  assignment  by  liim  to  tlie  complainant,  liail  assigned 
the  mortgage  to  one  Enos  P.  Gibson,  by  whom  it  was  sub- 
sequently assigned  to  Cliarles  B.  Kimball,  one  of  the  defend- 
ants. The  controversy  turns  entirely  upon  the  validity  of 
this  assignment  to  Gibson.  There  appears  to  have  been  en- 
dorsed upon  the  mortgage,  a  formal  deed  of  assignment  from 
Shoemaker  atid  wife  to  Gibson,  bearing  date  on  the  first  day 
of  March,  1856,  purporting  to  have  been  executed  in  the 
presence  of  two  witnesses,  and  to  have  been  acknowledged 
on  the  fourteenth  of  the  same  month  bef>re  a  commissioner 
resident  in  the  city  of  Philadelphia.  This  assignment  and 
the  acknowledgment  are  cancelled.  The  seals  are  torn  off, 
the  names  are  erased,  and  across  the  instrument  are  written 
the  words,  ''  this  assignment  not  consummated." 

Shoemaker,  the  mortgagee,  testifies  that  at  the  date  of  the 
assignment  to  Rose,  the  complainant,  he  was  the  owner  of 
the  bond  and  mortgage,  that  they  were  in  his  possession,  and 
that  he  had  never  before  parted  with  their  ownership.  He 
admits  the  execution  of  tiie  assignment  upon  the  mortgage, 
but  says  that  no  consideration  for  the  assignment  was  re- 
ceived, and  that  the  mortgage  was  never  delivered  to  Gibson  ; 
that  Gibson  was  his  partner  in  the  business  of  conveyancing, 
and  tliat  the  sale  was  made  to  a  third  party,  who  requested 
the  assignment  to  be  executed  to  Gibson.  This  was  done 
accordingly,  but  the  consideration  agreed  upon  was  not  paid, 
and  the  contract  never  consummated. 

It  appears  that  on  the  eighteenth  day  of  June,  1857,  a  bill 
was  filed  in  this  court  in  the  name  of  Gibson,  the  assignee, 
which,  so  far  as  appears  of  record,  is  still  pending.  Shoe- 
maker testifies  that  he  placed  the  mortgage  in  the  hands  of 
the  solicitor  for  collection,  employed  him  as  counsel,  and 
paid  him  a  retaining  fee;  that  he  afterwards  procured  tlie 
mortgage  from  the  solicitor,  and  made  the  assignment  to  the 
com[)lainant. 

In  confirmation  of  this  statement,  the  solicitor  testifies 
that  he  was  employed  by  Shoemaker  to  foreclose  the  mort- 
gage, and  received  a  fee  from  him.     That  he  filed  the  bill  in 


MAY  TERM,  1863.  187 


Rose  V.  Kimball. 


the  name  of  Gibson,  because  there  was  an  assignment  upon 
the  back  of  it  to  him,  tiien  uncancelled.  That  the  suit  was 
subsequently  discontinued,  or  agreed  to  be  discontinued,  at 
Shoemaker's  request,  to  whom  the  solicitor  delivered  the 
mortgage,  and  received  from  him  payment  of  the  taxed  bill 
of  costs.  The  bill  of  costs  as  taxed  and  paid  by  Shoemaker, 
includes  the  costs  of  discontinuing  the  suit.  The  solicitor 
further  testifies  that  he  knew  no  other  person  in  the  business 
but  Shoemaker.  Tiiat  Gibson  left  the  bond  and  mortgage 
at  his  ofBce,  saying  that  Shoemaker  would  call  and  instruct 
him  what  to  do  with  them.  That  Shoemaker  gave  him  the 
instructions  to  foreclose  the  mortgage,  and  that  he  did  not 
know  Gibson  in  the  matter.  That  Shoemaker  expressed  sur- 
prise that  the  foreclosure  was  commenced  in  Gibson's  name, 
and  that  the  assigment  upon  the  mortgage  was  cancelled  by 
Shoemaker,  on  receiving  it  from  the  solicitor,  and  in  his 
presence. 

The  bill  of  costs,  referred  to  by  the  solicitor,  was  taxed 
and  filed  on  the  eighteenth  of  July,  1857.  The  assignment 
by  Shoemaker  to  Rose,  the  complainant,  was  executed  and 
acknowledged  on  the  fifth  of  August  following,  and  recorded 
on  the  nineteenth  of  the  same  month. 

The  instrument  which  is  claimed  to  be  an  assignment  from 
Gibson  to  Kimball,  the  defendant,  bears  date  on  the  fifteenth 
of  December,  1857,  long  after  the  assignment  to  the  complain- 
ant had  been  recorded.  Admitting  therefore  that  he  paid 
value  for  it,  he  took  it  with  constructive  notice  of  the  as- 
signment to  the  complainant.  He  took  the  assignment  under 
circumstances  which,  if  not  decisive  evidence  of  a  fraudulent 
purpose,  at  least  atford  the  strongest  evidence  that  the  trans- 
action was  not  in  good  faith.  The  bond  and  mortgage  were 
not  in  the  hands,  nor  under  the  control  of  the  assignor.  The 
instrument  of  assignment  is  in  the  form  of  a  notice  to  the 
solicitor,  that  Gibson  thereby  transferred  all  his  interest  in 
the  mortgage  for  value  received,  and  authorizes  the  transfer 
of  the  mortgage  to  Kimball,  and  the  suit  to  be  discontinued. 
When  this  instrument  was  in  fact  executed,  does  not  appear 


188  CASES  IN  CHANCERY. 

Rose   V.  Kimball. 

except  from  Gibson's  own  evidence.  The  subscribing  witness 
is  not  produced.  It  was  never  acknowledged,  but  purports 
to  have  been  recorded  in  the  clerk's  office  of  Camden  county  on 
the  fourteenth  of  December,  1860,  three  years  after  its  date. 
Kimball  indeed  swears  that  at  the  time  of  this  assignment, 
the  mortgage  was  in  the  hands  of  the  solicitor,  who  was  fore- 
closing it  for  Gibson.  Now,  not  only  the  evidence  of  the 
solicitor,  but  the  endorsements  upon  the  mortgage  itself, 
show  that  months  previously,  the  mortgage  had  been  de- 
livered by  the  solicitor  to  Shoemaker,  and  had  been  by  him 
assigned  and  transferred  to  Rose,  the  complainant.  Kimball 
does  not  pretend  that  he  ever  saw  the  mortgage  in  the  hands 
of  the  solicitor,  and  there  is  no  apparent  reason  why  the 
solicitor  should  ever  have  made  the  statements  which  Kim- 
ball alleges  he  did  make. 

The  evidence  of  Kimball  himself  furnishes  the  strongest 
evidence,  not  only  that  the  assignment  from  Gibson  to  hira 
was  procured  in  bad  faith,  but  that  the  consideration  paid 
for  it,  if  any  thing,  was  merely  nominal.  The  entire  mort- 
gaged premises,  consisting  of  over  five  hundred  acres  of  land, 
were  conveyed  to  Kimball  for  the  sum  of  one  dollar,  and 
were  expressly  declared  on  the  flice  of  the  deed  to  be  sub- 
ject to  the  complainant's  mortgage.  Haines  bought  the 
equity  of  redemption  for  one  dollar.  He  now  attempts  to 
relieve  the  land  from  the  burden  of  the  mortgage  for  a  nomi- 
nal consideration.  There  is  not  the  least  evidence  in  the 
cause,  independent  of  the  testimony  of  Gibson,  whose  evi- 
dence is  totally  unreliable,  and  of  Kimball  himself,  tending 
to  show  that  he  paid  one  dollar  consideration  for  the  mort- 
gage. It  is  impossible  to  read  Kimball's  own  evidence  with- 
out a  strong  conviction  that  the  consideration  he  paid  was  of 
no  value.  He  testifies,  indeed,  that  knowing  all  about  the 
property,  he  gave  $3,000  for  the  assignment,  and  yet  proves 
by  a  witness,  who  is  not  contradicted,  that  the  property  is 
not  worth  half  the  money. 

Tiie  evidence  renders  it  very  probable  that  the  mort- 
gage was   originally    made   and     assigned    for   a   dishonest 


MAY  TERM,  18G3.  189 


Kearney  v.  Macomb  et  al. 


purpose,  but  I  see  no  reason  for  supposing  that  Kimball  ever 
had  the  least  title  to  it,  in  law  or  in  equity,  nor  any  ground 
upon  which  the  title  of  the  complainant  can  be  impeached, 
or  his  right  to  relief  questioned. 


AiiCHiBALD  K.  Kearney  vs.  Alexander  S.  Macomb  and 

others. 

1.  Where  the  duly  of  a  trustee  is  a  matter  of  doubt,  it  is  his  undoubted 
right  to  ask  and  receive  the  aid  and  direction  of  a  court  of  equity  in  the 
execution  of  his  trust, 

2.  The  familiar  principle  of  the  common  law,  that  in  the  creation  of  an 
estate  by  deed  the  word  "heirs"  is  necessary  to  pass  the  fee,  has  not  been 
altered  in  this  state  by  statute,  nor  has  it  been  modified  or  relaxed  by  ju- 
dicial construction.  No  synonym  can  supply  the  omission  of  the  word 
"  heirs,"  nor  can  the  legal  construction  of  the  grant  be  afiected  by  the 
intention  of  the  parties. 

3.  An  instrument  conveying  lands  absolutely,  not  as  security  for  money 
nor  to  be  held  in  trust  for  its  repayment,  but  in  lieu  of  it,  is  a  deed.  No 
subsequent  event  can  convert  it  into  mortgage. 

4.  The  heir-at-law  of  the  testator,  claiming  a  legacy  under  the  will,  and 
also  claiming  real  estate  as  heir-at-law  against  the  will,  the  will  being  in- 
operative as  to  real  estate  by  reason  of  a  defective  execution,  the  heir  will 
not  be  put  to  his  election,  but  will  take  both  the  legacy'  and  the  land.  In 
such  case  the  heir  will  not  be  required  to  give  up  the  legacy,  unless  the 
legacy  was  bequeathed  upon  an  expi'ess  condition  to  give  up  the  real  estate. 

5.  A  husband  and  wife  by  deed  of  trust,  conveyed  the  legal  title  to 
certain  real  estate  to  the  trustee /or  life,  and  by  the  same  deed  in  terms, 
constituted  the  trustee  attorney  irrevocable,  in  the  name  of  the  grantors, 
or  either  of  them,  in  conjunction  with  the  grantors,  to  convey  the  land. 

Held,  that  as  respects  the  wife,  the  power  as  such  was  a  nullity.  She  could 
not  convey  by  letter  of  attorney. 

Also,  that  it  can  only  serve  as  evidence  of  an  intention  on  the  part  of  the 
grantors,  to  confer  upon  the  trustee  a  power  of  sale. 

Further,  the  trustee  has  no  power  of  sale  under  the  deed. 


By  an  antenuptial  settlement,  bearing  date  on    the  seventh 
of  April,  1840,  executed  by  and  between  Susan  Kearney,  of 
Vol,.  I.  M 


190  CASES  IN  CHANCERY. 

Kearney  v.  Macomb  et  al. 

the  first  part;  Alexander  S.  Macomb,  her  intended  hushaiid, 
of  the  second  part ;  and  Philip  Kearney  and  Archibald  K. 
Kearney,  of  the  third  part;  the  said  Susan  Kearney  conveyed 
certain  personal  estate,  and  her' interest  in  the  proceeds  of 
certain  real  estate,  unto  the  said  Phili[)  Kearney  and  Archi- 
bald K.  Kearney,  their  executors,  administrators,  and  assigns, 
upon  the  following  trusts,  viz.  In  trust  (1)  for  the  said  Susan 
Kearney  until  her  marriage.  (2)  From  and  after  the  sol- 
emnization of  her  marriage,  during  the  joint  lives  of  the  said 
Susan  and  Alexander,  to  pay  the  income  of  the  trust  fund  to 
the  said  Susan  or  her  appointee,  (o)  Upon  his  death,  if  she 
survived  her  husband,  to  pay  and  transfer  the  said  property 
to  the  said  Susan.  (4.)  "  And  if  it  shall  happen  that  the  said 
Susan  die  before  the  said  Alexander  S.  Macomb,  her  intended 
husband,  then  from  and  immediately  after  her  decease  to 
hold  the  said  property  so  vested  as  aforesaid  in  the  said 
trustees,  in  trust  to  pay,  assign,  transfer,  and  set  over  one 
equal  half  part  thereof  to  the  said  Alexander  S.  Macomb, 
her  intended  husband,  for  his  absolute  use,  and  to  pay,  assign, 
transfer,  and  set  over  the  other  equal  half  [)art  thereof  to  her 
father,  the  said  Philip  Kearney,  his  executors,  administra- 
tors, or  assigns,  for  his  and  their  absolute  use." 

Philip  Kearney,  one  of  the  trustees,  died  on  the  tenth  of 
April,  1849,  leaving  the  complainant  the  sole  surviving 
trustee  under  the  settlement. 

He  left  Susan  Macomb  and  Philip  Kearney,  his  only 
children  and  heirs-at-law,  surviving  him.  He  left  a  will 
bearing  date  on  the  third  of  September,  1847,  executed  in 
the  presence  of  two  witnesses  only,  and  therefore  invalid  to 
pass  the  title  to  real  estate  under  the  law  of  this  state  as  it 
then  was.  The  will  was  admitted  to  probate  in  the  city  of 
New  York,  the  place  of  the  testator's  doraicil,  on  the  eleventh 
of  May,  1849.  By  his  will  he  devised  to  his  son  Philip  cer- 
tain real  and  personal  estate  in  the  states  of  Illinois  and 
Wisconsin,  adding,  by  way  of  explanation  to  the  devise,  this 
clause:  "The  above  is  given  to  my  son  as  an  equivalent  to 
my  homestead   at   Newark,  which    I   had   desired   lo  divide 


MAY  TERM,  1863.  191 

Kearney  v.  Macomb  et  al. 

between  him  and  his  sister,  which  he  did  not  wish,- but  pre- 
ferred this  arrangement."  In  tiie  closing  clause  of  the  will 
the  testator  adds  :  "  My  affection  for  my  surviving  children 
being  equal,  my  desire  has  been  to  divide  ray  estate  equally 
between  them." 

The  said  Philip  Kearney,  in  and  by  his  said  will,  also  de- 
vised to  his  executors  the  Kearney  homestead  in  Newark,  in 
this  state,  in  trust  for  his  daughter  Susan,  during  her  life; 
at  her  decease,  "  the  use  and  occupation  of  the  premises  to  be 
for  the  testator's  brother  Archibald,  so  long  as  he  lives;  at 
his  decease  for  the  benefit  of  Susan's  children,  and  should  her 
children  die  without  leaving  issue,  then  to  the  testator's  near- 
est heir." 

The  will  devised  a  large  amount  of  real  estate  in  New 
York  and  elsewhere,  to  each  of  the  testator's  children,  and  is 
operative  as  to  all  the  property  devised,  except  the  real  estate 
in  New  Jersey,  which,  upon  the  testator's  death,  descended 
to  and  vested  in  his  two  children  as  tenants  in  common  in  fee. 
Being  so  seized,  Philip  Kearney,  the  son,  by  deed,  bearing 
date  on  the  sixteenth  of  July,  1850,  conveyed  and  released 
the  undivided  half  of  the  homestead  property  to  his  sister, 
Susan  Macomb,  in  fee  simple. 

Philip  Kearney,  the  elder,  one  of  the  trustees  named  in  the 
deed  of  settlement,  appropriated  to  his  own  use  a  [)ortion  of 
the  trust  fund,  without  the  knowledge  or  consent  of  his  co- 
trustee, whereby  his  estate  became  largely  indebted  to  the 
trust.  After  his  death,  the  said  Alexander  S.  Macomb  and 
Susan  his  wife,  having  received  from  the  estate  of  the  said 
Philip  Kearney  the  amount  so  appropriated,  and  being  de- 
sirous of  investing  the  surviving  trustee  with  property  suffi- 
cient to  make  the  original  trust  fund  full,  and  having  issue 
of  their  marriage  two  daughters,  by  deed  bearing  date  oa 
the  first  day  of  November,  1850,  after  the  said  Susan  be- 
came seized  in  severalty  of  the  Kearney  homestead,  con- 
veyed to  Archibald  K.  Kearney,  the  surviving  trustee  "his 
legal  representatives  and  assigns  forever,"  nine  lots  of  land 
in   the  city  of  New  York,  together  with   the   homestead  at 


192  CASES  IN  CHANCERY. 

Kearney  v.  Macomb  et  al. 

Newai'k,  "  to  have  and  to  hold  the  same  and  the  proceeds 
thereof  to  the  said  Archibald  K.  Kearney,  his  legal  repre- 
sentatives and  assigns  forever,  upon  the  trusts  and  condi- 
tions mentioned  and  set  forth  in  the  said  antenuptial  con- 
tract, in  lieu  of  the  sum  of  $43,633  of  the  trust  funds  so 
approj)riated  by  the  said  Philip  Kearney,  as  such  trustee 
aforesaid."  i 

The  grantors  in  and  by  the  said  deed  also  constituted  the 
grantee  and  his  representatives  their  attorney  and  attorneys 
irrevocable,  with  power  in  the  name  of  the  grantors  to  exe- 
cute deeds  for  the  said  lots,  with  the  usual  covenants  and 
warranty  to  carry  into  full  effect  and  execution  every  contract 
which  he  or  they  might  enter  into  for  the  sale  of  the  said 
lots,  or  any  of  them. 

The  lots  in  New  York  thus  conveyed,  have  been  sold  by 
the  trustee  for  about  $65,000,  so  tiiat  there  remains  in  the 
hands  of  the  complainant,  as  surviving  trustee,  funds  to  a 
much  larger  amount  than  were  originally  conveyed  to  him 
and  Philip  Kearney,  in  trust,  under  the  antenuptial  settle- 
ment, and  more  than  the  sum  intended  to  be  replaced  in 
order  to  make  the  original  trust  fund  full. 

On  the  twenty-ninth  of  April,  1852,  Susan  Kearney  Ma- 
comb died  intestate,  leaving  her  surviving  her  husband,  the 
said  Alexander  S.  Macomb,  and  two  daughters,  both  of 
whom,  at  the  time  of  filing  the  bill,  were  infants. 

The  Kearney  homestead  at  Newark  has  greatly  increased 
in  value ;  large  assessments  are  about  to  be  made  upon  it 
for  paving,  and  other  improvements.  Tlie  complainant  has 
filed  this  bill  to  obtain  the  decision  of  questions  which  have 
arisen  touching  his  interest  and  powers  as  trustee  of  the  said 
property,  and  which  the  bill  alleges  it  is  necessary  should  be 
settled,  to  guide  him  in  the  execution  of  the  trusts. 

Parker  and  Keashey,  for  complainant. 
Bradley,  for  defendants. 


MAY  TERM,  1863.  193 

Kearney  v.  Macomb  et  a'.. 

The  Chancellor.  Where  the  duty  of  a  trustee  is  a 
matter  of  doubt,  it  is  his  undoubted  right  to  ask  and  receive 
the  aid  and  direction  of  a  court  of  equity  in  the  execution 
of  his  trust.  The  questions  submitted  in  tiiis  case  for  the 
determination  of  the  court,  affect  not  only  tlie  duty  of  the 
trustee  within  the  acknowledged  limits  of  the  trust,  and  in 
regard  to  the  trust  estate,  but  they  involve  the  title  of  the 
trustee  to  the  property  in  question.  As  the  decision  there- 
fore seems  of  necessity  to  affect  the  rights  of  others  who  are 
not  before  the  court,  I  have  had  some  doubt  as  to  the  pro- 
priety of  deciding  those  questions.  But  inasmuch  as  the  de- 
cision is  designed  solely  for  the  guidance  and  protection  of 
the  trustee,  and  as  it  will  conclude  the  rights  of  those 
only  who  are  parties  to  the  proceeding,  the  points  submitted 
ft)r  the  opinion  of  the  court  will  be  determined. 

1.  The  deed  from  Alexander  S.  Macomb  and  Susan  Kear- 
ney his  wife  to  the  complainant,  as  surviving  trustee  under 
the  marriage  settlement  of  the  Kearney  homestead,  passed 
an  estate  for  the  life  of  the  grantee  only,  and  not  the  fee 
simple.  The  grant  is  to  the  said  Archibald  K.  Kearney, 
"  his  legal  representatives,  and  assigns  for  ever."  The  ha- 
bendum clause  is,  "  to  have  and  to  hold  *  *  to  the  said 
Archibald  K.  Kearney,  his  legal  representatives  and  assigns 
for  ever."  There  is  no  more  elementary  or  familiar  principle 
of  the  common  law,  than  that  in  the  creation  of  an  estate  by 
deed,  the  word  "  heirs"  is  necessary  to  make  a  fee.  A  grant 
to  a  man  for  ever,  or  to  him  and  his  assigns  for  ever,  vests  in 
him  but  an  estate  for  life.  Littleton,  §  1  ;  2  Bla.  Com.  107-8; 
2  Crabb  on  Real  Prop.,  §  955  ;  ShepparcVs  Touch.  86,  101-2  ; 
2  Preston  on  Est.  11,12;  4  Kent's  Com.  5,  6  ;  1  Washburn 
on  Real  Prop.  28 ;  2  Ibid.  621. 

The  cases  show. clearly  that  no  synonym  can  supply  the 
omission  of  the  word  "heirs,"  and  that  the  legal  construc- 
tion of  the  grant  cannot  be  affected  by  the  intention  of  the 
parties. 

The  common  law  rule  has  not  been  altered  in  this  state 
by  statute.     Nor  has  it  been  modified  or  relaxed  by  judicial 


194  CASES  IN  CHANCERY. 

Kearney  v.  Macomb  et  al. 

construction.  In  the  recent  case  of  Traphagen  &  Adams  v. 
Moss,  decided  by  the  Court  of  Appeals  at  November  Term, 
1860,  the  common  law  rule  of  construction  was  maintained 
in  the  learned  and  elaborate  opinion  of  the  Ciiief  Justice,  and 
adopted  by  the  court. 

2.  The  deed  to  the  complainant  recites  the  antenuptial 
settlement,  the  death  of  one  of  the  trustees,  the  app.ropria- 
tion  by  him  of  $43,633  of  the  trust  fund  to  his  use,  and  tiie 
desire  on  the  part  of  the  grantors  of  investing  the  surviving 
trustee  with  property  equal  in  value  to  the  said  sum  of 
$43,633,  in  oi'der  to  make  the  original  trust  fund  full ;  and  it 
conveys  the  propei'ty  to  be  held  "upon  the  trusts  and  con- 
ditions mentioned  and  set  forth  in  the  antenuptial  contract, 
in  lieu  of  the  said  sum  of  $43,633  of  the  trust  fund  so  ap- 
priated  by  the  said  Philip  Kearney,  deceased,  as  such  trus 
tee."  The  terms  of  the  deed  admit  of  no  question  as  to  the 
purposes  for  which  the  estate  is  conveyed.  It  is  to  be  held 
upon  the  trusts  and  conditions  set  forth  in  the  antenuptial 
contract. 

3.  The  terms  of  the  deed  to  the  complainant  are  absolute. 
No  proviso  or  condition  is  annexed  to  the  grant.  None  can 
be  implied  from  the  recitals  in  the  conveyance.  It  is  true, 
the  declared  desire  of  the  grantors  was  to  invest  the  survi- 
ving trustee  with  property  equal  in  value  to  $43,633,  in 
order  to  make  the  original  trust  fund  full.  But  the  deed  is 
an  absolute  grant  of  the  lands  conveyed  "  in  lieu  of  the  said 
sum  of  $43,633."  Not  as  security  for  the  said  money,  not 
to  be  held  in  trust  for  its  repayment,  but  in  lieu  of  it.  There 
is  no  intimation  of  an  intention  that  in  any  event,  any  part 
of  the  land  conveyed  should  revert  to  the  grantors.  If  in  its 
inception  it  was  a  deed,  no  subsequent  event  could  convert 
it  into  a  mortgage.  A  mere  advance  in  the  value  of  the  land 
conveyed,  beyond  the  amount  of  the  debt  for  which  it  was 
transferred  as  a  substitute,  could  not  produce  that  result. 
"What  the  value  of  the  land  conveyed  was  at  the  date  of  the 
conveyance,  does  not  appear.  At  that  time  it  might  have 
been  of  equal  value  only  with  the  amount  in  lieu  of  which  it 


MAY  TERM,  1863.  195 

Kearney  v.  Macomb  et  al. 

was  conveyed.  And  even  if  it  was  then  of  greater  amount, 
there  are  obvious  reasons  why  the  grantors  sliould  have  de- 
sired, or  at  least  consented,  that  the  diminution  of  the  trust 
fund  should  have  been  more  than  replaced.  Under  the  cir- 
cumstances, the  conveyance  and  the  trusts  may  have  beeu 
alike  injudicious  and  inexpedient.  But  the  fee  was  in  the 
grantors.  They  had  a  perfect  right  to  dispose  of  it  as  they 
saw  fit.     Slat  pro  ratione  voluntas. 

I  think  there  is  nothing  in  the  recitals  of  the  conveyance, 
or  in  the  terms  of  the  grant,  to  justify  the  court  in  treating 
the  conveyance  as  a  mere  mortgage,  or  in  ordering  the  re- 
conveyance of  the  homestead,  upon  the  ground  that  the  pur- 
pose of  the  conveyance  has  been  answered  by  the  lands  al- 
ready sold. 

4.  But  it  is  urged  that  although  the  will  is  invalid  and 
inoperative  to  pass  land  in  this  state,  yet  if  the  son  and 
daughter  of  the  testator,  who  are  devisees  under  the  will, 
would  avail  themselves  of  other  parts  of  it,  they  must  con- 
sent to  carry  out  the  devise  in  regard  to  this  land  also. 
They  are  put  to  their  election  to  stand  by  the  will  in  omni- 
bus, or  not  to  claim  under  it  at  all.  And  inasmuch  as  the  land 
is,  by  the  will  of  Philip  Kearney,  devised  to  his  executors  in 
trust  for  certain  purposes  in  the  said  will  specified,  and  the 
heirs-at-law  have  certain  real  estate  elsewhere  devised  to  them 
in  said  will,  which  they  have  elected  to  take,  they  are  bound 
to  permit  the  title  of  the  Newark  property  to  pass  to  the  trus- 
tees for  the  purposes  specified  in  the  will. 

The  doctrine  of  election  is  founded  upon  the  principle  that 
a  person  shall  not  be  permitted  to  claim  under  any  instru- 
ment, whether  it  be  a  deed  or  will,  without  giving  full 
effect  to  it  in  every  respect,  so  far  as  such  person  is  con- 
cerned. And  the  ground  upon  which  courts  of  equity 
interfere  is,  that  the.  purposes  of  substantial  justice  may  be 
obtained  by  carrying  into  full  effect  the  whole  intentions  of 
the  testator.  1  Jarman  on  Wills  385  ;  2  Roper  on  Log, 
1567  ;  2  Story's  Eq.  Jar.,  §  1075-7. 

Where  the  devise  is  valid,  but  inoperative  because  the  title 


196  CASES  IN  CHANCERY. 

Kearney  v.  Macomb  et  al. 

is  not  in  the  devisor  but  in  the  devisee,  the  application  of 
the  principle  is  clear. 

But  where  the  devise  is  invalid  because  not  a  good  execu- 
tion of  the  power  to  devise,  or  because  of  the  infancy  of  the 
devisor,  or  because  the  will  is  not  duly  executed  to  pass  real 
estate,  the  heir-at-law  may  take  both  the  land  devised  and 
also  the  legacy.  In  Hearle  v.  Greenbank,  1  Vesey,  sen.,  298, 
Lord  Hardwicke  said  :  "  The  infant  is  not  obliged  to  make 
her  election,  for  here  the  will  is  void  ;  and  when  the  obliga- 
tion arises  from  the  insufficiency  of  the  execution  or  invalidity 
of  the  will,  there  is  no  case  where  the  legatee  is  bound  to 
make  an  election,  for  there  is  no  will  of  the  land.  A  man 
devises  a  legacy  out  of  land  to  his  heir-at-law  and  the  land 
to  another;  the  will  is  not  executed  according  to  the  statute 
of  frauds  for  the  real  estate  ;  the  court  will  not  oblige  the 
heir-at-law,  upon  accepting  the  legacy,  to  give  up  the  land." 
In  such  case  the  heir  will  not  be  required  to  give  up  the  leg- 
acy, unless  the  legacy  was  bequeathed  upon  an  express  condi- 
tion to  give  up  the  real  estate.  BougJiton  v.  Boughton,  2 
Vesey,  sen.,  12. 

In  Cai-ey  v.  Askeiv, cited  8  Vesey  492, 497,  Lord  Kenyon  said  : 
"The  distinction  was  settled,  and  was  not  to  be  unsettled, 
thit  if  a  pecuniary  legacy  was  bequeathed  by  an  unattested 
will,  under  an  express  condition  to  give  up  a  real  estate,  by 
that  unattested  will  attempted  to  be  disposed  of,  such  condi- 
tion being  expressed  in  the  body  of  the  will,  it  was  a  case  of 
election;  as  he  could  not  take  the  legacy  without  complying 
with  that  express  condition.  But  Lord  Kenyon  also  took  it 
to  be  settled  as  Lord  Hardwicke  had  adjudged,  that  if  there 
was  nothing  in  the  will  but  a  mere  devise  of  real  estate,  the 
will  was  not  capable  of  being  read  as  to  that  i)art ;  and 
unless,  according  to  an  express  condition,  the  legacy  was 
given  so  that  the  testator  said  expressly  the  legatee  should 
not  take  unless  that  condition  was  complied  with,  it  was  not 
a  case  of  election."  The  principle  was  affirmed  by  Lord 
Eldon  as  a  long  settled  doctrine,  in  Shcddon  v.  Goodrich,  8 
Vesey  482. 


MAY  TERM,  1863.  197 

Kearney  v.  Macomb  et  al. 

The  doctrine  of  these  cases  is,  that  tlie  heir-at-law  of  the 
testator  claiming  a  legacy  under  the  will,  and  also  claiming 
real  estate  as  heir-at-Iavv  aijainst  the  will,  the  will  heino:  in- 
operative  as  to  real  estate  by  reason  of  a  defective  execntion, 
the  heir  will  not  be  put  to  his  election,  but  will  take  both 
the  legacy  and  the  land.  In  such  cases  "  the  heir  is  allowed 
to  disappoint  the  testator's  attempted  disposition  by  claiming 
the  estate  in  virtue  of  his  title  by  descent,  and  at  the  same 
time  take  his  legacy  on  the  ground  that  the  want  of  a  due 
execution  precludes  all  judicial  recognition  of  the  fact  of  the 
testator  having  intended  to  devise  freehold  estates;  and 
therefore  the  will  cannot  be  read  as  a  disposition  of  such 
estates  for  the  purpose  even  of  raising  a  case  of  election  as 
against  the  heir."  1  Jarman  on  Wills,  {ed.  1849)  389;  1 
Dev.  &  Bat.  Eg.  634 ;  4  Dess.  Ch.  li.  274  ;  1  Lead.  Cases  in 
Eq.  [M  ed.)  404. 

Upon  the  well  settled  doctrine  of  the  court  of  equity,  this 
is  not  a  case  in  which  the  heir  could  be  put  to  his  election  if 
all  the  property  aifected  by  the  will  were  within  the  juris- 
diction and  under  the  control  of  the  court.  There  is  no 
condition  annexed  to  the  devise  to  the  heir-at-law,  either 
express,  or  by  necessary  implication.  It  is  no  will  of  land 
in  this  state.  The  will  is  not  executed  and  attested  according 
to  our  law,  and  can  create  no  case  for  election  as  to  lauds 
here,  from  implication.     Jones  v.  Jones,  8  Gill  197. 

If  the  doctrine  of  election  is  at  all  applicable  under  the 
terms  of  the  will,  it  would  seem  proper  to  be  aj)p]ied  in  the 
tribunals  of  those  states  where  the  heir  shall  claim  by  virtue 
of  the  devise.  If  he  claim  under  the  will  he  may  be  put  to 
his  election,  but  how  shall  he  be  put  to  his  election  when  he 
claims  as  heir-at-law,  there  being  no  valid  will  in  existence 
by  which  the  title  to  the  property  can  be  affected. 

Philip  Kearney,  the  elder,  died  intestate  as  to  his  real 
estate  in  New  Jersey.  Upon  his  death  it  descended  to  his 
children,  Philip  Kearney  and  Susan  Macomb,  as  tenants  in 
common  in  fee.  Upon  the  conveyance  and  release  by  Philip 
Kearney  of  his  interest  to  his  sister,  she  became  seized  of 


198  CASES  IN  CHANCERY. 

Smith  V.  Vreeland  et  al. 

the  whole  estate  in  severalty.  The  deed  from  Alexander 
Macomb  and  wife  to  the  complainant  conveyed  a  life  estate 
only.  That  estate  he  holds,  according  to  the  exi)ress  terms 
of  the  grant,  upon  the  trusts  and  conditions  of  the  ante- 
nuptial contract,  and  not  upon  the  trusts  contained  in  the  will 
of  Philip  Kearney,  the  elder. 

Tlie  deed  is  very  peculiar  in  its  structure.  It  conveys  the 
legal  title  to  the  tinistee,  and  then  in  terms  constitutes  him 
the  attorney  irrevocable  of  the  grantors,  in  the  name  of  the 
grantors  or  either  of  them,  in  conjunction  with  the  grantors, 
to  convey  the  land.  As  respects  the  wife,  the  power  as  such 
was  a  nullity.  She  could  not  convey  by  letter  of  attorney. 
Adni'rs  of  Earle  v.  Earle,  Spencer  360. 

This  clause  of  the  deed  can  only  serve  as  evidence  of  an 
intention  on  the  part  of  the  grantors  to  confer  upon  the 
trustee  a  power  of  sale.  But  then  the  conveyance  should  be 
executed  in  substantial  conformity  with  the  power.  I  in- 
cline to  the  opinion  that  the  trustee  has  no  power  of  sale 
under  the  trust  deed.  If  a  sale  becomes  necessary  or  expe- 
dient for  the  interests  of  the  cestui  que  tnosts  or  for  the  pro- 
tection of  the  trust  property,  it  would  be  advisable  tliat  tiie 
sale  should  be  made  under  judicial  sanction. 

Cited  in  Att\j  Gen'l  v.  Moore's  Ex'rs,  4  C.  E.  Gr.  519 ;    Wellei-  v.  Rolu- 
son,  2  a  E.  Gr.  17. 


ChA-RLES  J.  Smith  vs.  George  Vreeland  and  wife  and 

.  others. 

1.  A  gift  of  money  to  a  married  woman  in  1848,  being  made  without 
a  settlement  upon  her,  as  well  as  her  earnings  during  coverture,  are  the 
property  of  the  husband. 

2.  A  voluntary  conveyance  to  a  married  woman  b}'  her  husband,  while 
he  is  embarrassed  by  debts,  is  fraudulent  and  void  as  against  creditors. 

3.  £]quity  will  protect  the  title  of  a  bona  fide  purchaser  for  value,  with- 
out notice  of  fraud,  though  he  purchase  from  a  person  with  notice. 

4.  A  purchaser  with  actual  or  constructive  notice  of  fraud,  though  he 
pay  a  valuable  consideration,  takes  title  subject  to  all  the  equities  to  which 
it  was  liable  in  the  hands  of  the  vendor.     In  such  case  he  will  not  be  per- 


MAY  TERM,  1863.  199 

Smith  V.  Vreeland  et  al. 

mitted  to  protect  himself  against  such  claims,  but  his  own  tiile  will  be  post- 
poned and  made  subservient  to  them. 

5.  A  purchaser  is  presumed  to  have  knowledge  of  all  the  facts  disclosed 
by  the  deeds  under  which  he  claims  title. 

6.  A  purchaser  cannot  claim  to  be  a  bona  fide  purchaser  wiiliout  notice, 
where  the  facts  patent  upon  the  face  of  his  title  and  under  his  immediate 
observation,  are  sufficient  to  put  him  upon  inquiry. 

7.  Where  a  creditor  comes  into  equity  to  remove  fraudulent  encum- 
brances or  conveyances  out  of  the  way  of  his  execution  at  law,  the  effect 
of  the  decree  is  simply  to  declare  the  creditor's  claim  an  encumbrance  upon 
the  property,  ii  preference  to  the  fraudulent  encumbrance  or  alienation. 

8.  Where  a  party  has  proceeded  to  a  sale  under  his  execution  at  law, 
and  become  himself  the  purciiaser  of  the  property  for  a  very  inadequate 
consideration,  the  court  will  not  set  a-^ide  the  prior  conveyances,  and  perfect 
the  title  under  the  execution,  to  the  prejudice  of  other  judgment  creditors. 
All  that  the  complainant  can  ask  in  equity  is  the  payment  of  his  debt.  If 
his  legal  rights  are  more  extensive,  they  must  be  enforced  at  law. 


Tlie  case  was  disposed  of  upon  final  hearing  upon  tlie  bill, 
answer  and  proofs. 

Weart,  for  com])]ainant,  cited  1  Story's  Eq.  Jar.,  §  408,  a, 
and  note  5;  Dunlap's  Paley's  Agency,  [Ath  Am.  ed.)  262  and 
notes  ;  Darfs  Vendor  (  Waterman)  404,  408,  note  1,  407,  note 
2  ;  Newhirk  v.  3Iorris,  1  Beas.  64 ;  Eameston  v.  Lyde,  I 
Paige  637  ;  Journeay  v.  Brown,  2  Diotcher  111;  Ednnirds 
on  Receivers  362;  2  Barb.  Ch.  Pr.  157;  Corning  v.  White, 
2  Paige  567  ;  McDcrmuti  v.  Strong,  4  Johns.  Ch.  R.  687  ; 
Wilson  V.  Allen,  6  Barb.  S.  C.  R.  545. 

Fleming,  for  Vreeland  and  wife,  cited  Roberts  on  Fraud. 
Con.,  ch.  4,  §  10,  p.  497  ;  Disborough  v.  Outcalt,  Saxton  298  ; 
Broom's  Leg.  Max.  561  ;  Jones  v.  Naughright,  2  Stocht.  301  ; 
Halsted  v.  Davison,  Ibid.  295;  Garr  v.  Hill,  1  Ibid.  215; 
Owen  V.  Arvis,  2  Dutcher  43  ;  Hendricks  v.  Mount,  2  South. 
743. 

Slaight,  for  Mrs.  Scott. 

The  Chancellor.  The  bill  is  filed  by  an  execution  credi- 
tor of  David  Scott,  to  set  aside  as  fraudulent  certain  convey 


200  CASES  IN  CHANCERY. 

Smith  V.  Vreeland  et  al. 

ances,  by  which  the  legal  title  to  the  real  estate  of  the  debtor 
was  transferred  to  Vreeland. 

The  jiidginents  were  originally  obtained  by  Abraham  T. 
Russell,  upon  two  promissory  notes  made  by  Seott  to  Stephen 
W.  Smith,  and  by  him  endorsed  to  Russell.  The  notes  were 
given  for  debts  due  from  Scott  to  Smith,  and  were  discounted 
by  Russell  fur  the  accommodation  of  the  endorser.  The 
judgment  being  unsatisfied,  and  Smith  being  liable  as  en- 
dorser for  the  debt,  procured  his  brother,  Charles  J.  Smith, 
to  advance  the  money,  and  take  an  assignment  of  the  judg- 
ment in  his  own  name.  Had  the  debt  been  paid  by  the  en- 
dorser he  would  have  been  entitled  in  equity  as  surety,  to  all 
the  securities  held  by  the  creditor  against  the  debtor.  If  it  be 
true  as  alleged  in  the  answer,  that  Stephen  W.  Smith  is  the 
real  complainant,  striving  to  secure  the  payment  of  a  debt 
from  his  debtor,  he  is  clearly  entitled  to  the  benefit  of  the 
judgment,  Charles  J,  Smith,  the  assignee  of  the  judgment, 
is  the  owner  in  equity,  and  entitled  to  the  saax?  protection 
as  the  original  plaintiff  in  the  judgment.  It  is  immaterial, 
therefore,  which  of  the  parties  is  the  real  complainant  in  the 
cause.     The  suit  is  obviously  for  the  benefit  of  the  endorser. 

The  defence  set  up  by  Scott  and  wife  in  their  answer,  cannot 
be  sustained.  When  the  suit  was  commenced  against  Scott, 
upon  wliich  the  first  judgment  was  recovered,  he  was  the 
owner  of  considerable  real  and  personal  estate,  and  was  em- 
barrassed by  debts,  if  not  actually  insolvent.  On  tiie  twenty- 
second  of  September,  1860,  the  day  on  which  the  summons 
was  returnable,  lie  conveyed  the  real  estate  in  question  to 
David  Bedford,  by  deed  with  covenants  of  general  warranty, 
the  wife  joining  with  her  husband  in  the  conveyance.  On  the 
eighth  of  October,  Bedford  and  wife  reconveyed  the  premises 
to  the  wife  of  Scott.  The  consideration  expressed  in  both 
deeds  was  $4000,  It  is  admitted  by  the  answer  that  no 
consideration  whatever  was  paid  for  either  conveyance.  The 
deeds  were  purely  voluntary.  Bedford  admits  that  he  had 
no  interest  in  the  j)remises.  He  took  title  merely  for  the 
benefit   of  the   wife.     This   transaction    is  attempted    to  be 


MAY  TERM,  1863.  201 

Smith  V.  Vreeland  et  al. 

justified  by  the  allegation  that  in  1848,  the  wife  received 
about  $500,  as  a  gift  from  her  mother,  with  which,  for  about 
seven  years,  she  carried  on  the  millinery  business  in  her 
own  name  and  on  her  own  account,  and  was  therel)y  enabled 
to  advance  money  to  her  husband,  with  which  the  property 
in  question  was  purchased.  There  is  no  evidence  whatever 
in  support  of  this  allegation.  If  it  were  fully  proved  it  con- 
stitutes no  defence.  The  gift  to  the  wife  in  1848,  being 
made  without  a  settlement  on  the  wife,  as  well  as  the  earivjngs 
of  the  wife  during  coverture,  are  the  property  of  the  husbantl. 
A  conveyance  of  the  property  to  her,  while  the  husband  is 
embarrassed  by  debts,  is  fraudulent  and  void  as  against 
creditors.  The  subject  was  under  consideration  in  the  case 
of  Be/ford  v.  Crane,  decided  at  the  present  term,  and  in 
SkiUmcni  v.  Skill  man,  1  Beas.  403.  It  did  not  seem  to  be 
seriously  contended  by  counsel  upon  the  argument,  that  this 
title  in  Mrs.  Scott  was  valid  as  against  the  creditors  of  the 
husl)and.  But  it  was  urged  that  Vreeland  was  a  bona  fide 
purchaser  for  value,  without  notice  of  the  fraud,  and  that 
his  title  was  therefore  valid.  The  principle  that  a  bona  fide 
purchaser  for  value,  without  notice  of  the  fraud,  may  protect 
his  title,  though  he  purchase  from  a  person  with  notice,  is  too 
clearly  established  to  admit  of  question.  1  Slorys  JEq ,  § 
409,  410. 

But  the  princij)le  is  equally  clear,  that  if  he  purchase  with 
actual  or  constructive  notice  of  the  fraud,  though  he  pay  a 
valuable  consideration,  he  takes  title,  subject  to  all  the  equiti.'s 
to  which  it  was  liable  in  the  hands  of  the  vendor.  In  such 
case  he  will  not  be  permitted  to  protect  himself  against  such 
claims,  but  his  own  title  will  be  postponed  and  made  sub- 
servient to  them.     1  Sto7-y's  Eq.,  §  395. 

Vreeland  claims  title  under  the  wife,  not  under  the  hus- 
band. The  purchase  was  made  (so  the  answer  alleges)  from 
her.  The  husband  was  induced  to  join  in  the  deed,  merely 
because  the  deed  of  the  wife  without  his  consent,  was  void. 
He  cannot  make  out  his  title  but  through  the  deed  from  Scott 
and  wife  to  Bedford,  and   from   Bedlbrd   back  to  Mrs.  Scott, 


202  CASES  IN  CFIANCERY. 

Smitli  V.  Vrecland  et  al. 

and  he  is  presumed  to  have  knowledge  of  all  the  facts  which 
those  deeds  disclosed.      1  Ston/s  Eq.  Jar.,  §  400. 

He  knew  then  that  this  j)i'o|)erty  had  been  conveyed  from 
Scott  to  Bedford  for  the  alUged  consideration  of  $4000,  and 
immediately  thereafter  reconveyed  from  Bedford  to  the  wife 
for  the  same  consideration.  He  knew  that  when  the  deed 
from  Scott  to  Bedford  was  executed,  Scott  was  overwhelmed 
with  debt.  Vreeland  himself  was  among  the  number  of  his 
creditors.  He  knew  that  Mrs.  Scott  had  no  means  of  pay- 
ing $4000  for  the  property.  He  was  familiar  with  the  condi- 
tion of  her  affairs,  and  had  from  time  to  time,  before  the  ex- 
ecution of  the  deed,  been  advancing  money  at  her  instance 
to  redeem  the  property  from  sales  made  for  payment  of  taxes 
and  assessments.  He  had,  at  her  instance,  purchased  a 
mortgage  u|)on  the  property,  which  was  being  pressed  for 
payment.  He  knew  that  the  deed  from  Scott  to  Bedford 
was  promptly  placed  upon  record,  and  that  the  reconveyance 
from  Bedford  to  the  wife  was  not  recorded.  It  was  in  fact 
})laeed  upon  record  at  the  same  time  with  the  deed  from  the 
wife  to  Vreeland.  He  is  presumed  to  have  known  these 
facts,  because  a  purchaser  has  no  right,  where  the  interests 
of  others  are  involved,  to  close  his  eyes  to  facts  patent  upon 
the  face  of  his  title  and  under  his  immediate  observation. 
They  were  at  least  sufficient  to  have  put  him  upon  inquiry, 
and  to  deprive  him  of  the  character  of  a  bona  fide  })urchaser 
without  notice.  It  cannot  be,  where  a  husband  on  the  eve  of 
insolvency,  pressed  by  his  creditors,  with  actions  pending 
against  him,  conveys  to  a  third  party  who  conveys  directly 
back  to  the  wife  for  the  same  alleged  consideration,  that  a 
purchaser  with  knowledge  of  these  facts  can  claim  to  be  a 
bona  fide  purchaser  without  notice.  The  case  is  greatly 
strengthened  when  the  purchaser  appears  to  be  a  relative 
and  friend  of  the  wife,  who  claims  that  the  legal  title  was 
made  to  her  for  the  mere  purpose  of  perfecting  a  previous 
equitable  interest.  It  seems  in  the  highest  degree  improba- 
ble that  the  purchaser  should  not  have  been  fully  acquainted 


MAY  TERM,  1863.  203 

Smith  V.  Vreeland  et  al. 

with   tlie  real  character  of  the  deed  from  Bedford,  and  with 
the  nature  of  the  wife's  title. 

That  Scott  and  his  wife  designed  to  {)rotect  this  property 
from  the  husband's  creditors,  is  abundantly  evident.  It  is 
in  fact  avowed  and  attempted  to  be  justified  by  their  answer. 
There  is  persuasive  evidence  that  there  was  complicity  in 
this  design  between  Vreeland  and  the  Scotts.  The  judg- 
ment to  Vreeland  was  confessed,  and  an  execution  levied 
upon  the  defendants'  personal  property,  while  the  complain- 
ant's suit  was  pending.  After  the  complainant's  execution 
was  issued,  the  entire  personal  property  was  sold  and  pur- 
chased by  Vreeland,  the  proceeds  being  applied  toward  the 
satisfaction  of  the  execution.  On  the  first  of  March  follow- 
ing, the  property  thus  purchased  was  transferred  to  Mrs. 
Scott  for  $850.  The  execution  remained  unsatisfied,  no 
steps  apparently  having  been  taken  by  Vreeland  to  secure 
the  balance  of  his  debt.  Ou  the  twenty-first  of  May,  on  the 
petition  of  the  plaintiff  in  the  complainant's  judgment,  an 
order  was  made  by  the  judge  of  the  Hutlson  Circuit  for  the 
examination  of  Scott,  uudor  the  act  to  prevent  fraudulent 
trusts  and  assignments.  Of  that  fact  the  attorney  of  Vree- 
land had  notice.  The  fact  was  immediately  communicated 
to  the  attorney  of  Scott.  The  order  was  served  on  Scott  on 
the  twenty-second  of  May,  but  he  failed  to  appear  to  be  ex- 
amined. Bedford,  to  whom  Scott  had  conveyed,  was  ex- 
amined ou  the  twenty-ninth  of  May.  On  the  twenty-eighth, 
the  very  day  before  his  examination  and  the  disclosure  of 
the  fact  that  the  conveyance  to  him  from  Scott,  and  the  re- 
conveyance to  Mrs.  Scott,  were  voluntary,  Scott  and  wife 
conveyed  to  Vreeland.  The  deed  is  dated  on  the  preceding 
first  of  March,  so  as  to  appear  to  have  been  executed  pre- 
vious to  the  institution  of  proceedings  against  Scott  for  fraud. 
Notwithstanding  the  denials  of  the  answer,  it  is  difficult  to 
reconcile  these  facts  with  the  idea  of  good  faith  on  the  part 
of  Vreeland  in  taking  title. 

I  have  had  much  difficulty  in  regard  to  the  proper  relief 
to  be  administered.     It  is  usual  for  creditors,  after  exhaust- 


204  CASES  IN  CHANCERY. 

Smilli  V.  Vreeland  et  al. 

ing  their  legal  remedy  against  jiroperty,  the  legal  title  to 
which  is  in  the  defendant,  to  come  into  equity  to  remove 
fraudulent  encumbrances  or  conveyances  out  of  the  way  of 
execution  at  law.  In  such  case,  the  effect  of  the  decree  is 
simply  to  declare  the  creditors  claim  an  encumbrance  upon 
the  property,  in  preference  to  the  fraudulent  encumbrance 
or  alienation.  But  in  this  case  the  complainant,  proceeding 
on  the  assumption  that  tlie  conveyances  which  he  now  seeks 
to  avoid  were  null  and  void,  has  proceeded  to  a  sale  under 
his  execution  at  law,  although  the  title  had  been  conveyed 
out  of  the  defendant  in  execution,  and  has  himself  become 
the  purchaser  for  a  very  inadequate  price.  He  now  asks 
this  court,  by  its  decree,  to  declare  the  previous  conveyances 
fraudulent,  and  thus  confirm  his  title.  The  balance  due  on 
his  judgments  at  the  time  of  the  sale,  amounted  to  about 
$300.  The  value  of  the  property,  according  to  the  testimony 
of  his  witnesses,  was  $3000,  exceeding  by  about  $1300  the 
amount  of  the  encutubrances  upon  il.  The  defendant  is  also 
a  judgment  creditor,  having  a  balance  due  on  his  judgment 
of  over  $600,  double  the  amount  of  the  debt  dye  to  the  cora- 
plainanant.  The  bona  fides  of  this  judgment  has  not  beea 
called  in  question.  The  property  is  sufficient,  according  to 
the  evidence,  to  satisfy  both  judgments.  All  that  the  com- 
plainant can  ask  in  equity  is,  that  his  debt  shall  be  paid.  If 
his  legal  rights  are  more  extensive  they  must  be  enforced  at 
law,  without  the  aid  of  this  court.  Though  he  has  acquired 
a  legal  advantage  over  the  prior  judgment  of  the  defendant, 
there  is  no  reason  why  he  should  be  permitted  to  speculate 
upon  that  advantage  at  the  expense  of  the  defendant.  After 
the  complainant's  debt  is  satisfied,  the  balance  of  the  debtor's 
property  should  in  equity  be  applied  to  satisfy  the  debt  due 
to  Vreeland. 

The  legal  fraud  imputed  to  him  involves  no  moral  tur- 
pitude. He  may  have  been  prompted  by  honest  motives  in 
his  attempt  to  shield  property  to  which  the  wife  claimed 
title,  against  the  claims  of  the  husband's  creditors.  All  that 
the  complainant  can  demand  is,  that  his  judgment  shall  con- 


MAY  TERM,  1863.  205 

Sayre  et  al.  v.  Fredericks  et  al. 

stitute  a  lien  upon  the  property  in  the  hands  of  Vreeland. 
Upon  that  cluim  being  satisfied,  his  title  to  tiie  property 
should  he  surrendered.  If  the  claim  of  the  complainant  be 
not  satisfied,  the  property  will  be  decreed  to  be  sdhl,  subject 
to  legal  encumbrances,  and  the  proceeds  ap{)lietl  to  satisfy 
first  the  judgment  of  the  complainant,  and  then  the  judgment 
of  Vreeland. 

Cited  in  Van  Keuren  v.  McLaiujhlin,  4  C.  E.  Gr.  193. 


William  R.  Sayre  and  others  vs.  Nicholas  J.  Fredericks 
and  others. 

1.  The  eleventh  section  of  the  "act  for  the  prevention  of  frauds  and  per- 
juries," Nix.  Dig.  330,  requiring  trusts  to  be  in  writing,  in  terras  applies 
only  to  trusts  of  ZancZs.     It  does  not  extend  to  trusts  of  persona//^/. 

2.  A  mortgage  of  land  is  a  mere  security  for  the  payment  of  the  debt, 
and  is  not  a  conveyance  within  the  statute  of  frauds,  so  a.s  not  to  be  as- 
signable without  writing. 

3.  A  mortgage  given  to  secure  a  del)t  to  other  persons  than  the  mort- 
gngee,  operates  as  a  resulting  trust,  by  implication  of  law,  in  their  favor, 
which  is  expressly  excepted  from  the  operation  of  the  statute. 

4.  Parol  evidence,  to  raise  an  express  trust  upon  the  terms  of  a  written 
instrument,  is  received  with  great  caution,  and  must  be  very  clear  to  war- 
rant a  court  in  establishing  the  trust. 

5.  Whether  a  conveyance  be  fraudulent  or  not,  depends  upon  its  being 
made  upon  good  consideration  and  bona  fide.  If  it  be  defective  in  either 
particular,  although  valid  between  the  parties  and  their  representatives, 
it  is  void  as  to  creditors. 

6.  A  denial  by  the  answer  of  the  existence  of  fraud,  will  not  avail  to 
disprove  it,  where  the  answer  admits  facts  from  whicli  fraud  follows  as  a 
natural  and  legal,  if  not  a  necessary  and  unavoidable  conclusion. 


Keasbey,  for  complainants,  cited  Nix.  Dig.  330,  §11; 
Knight  y.  Packer,  1  Beas.'2\\;  Emerick  v.  Harlan,  Ibid, 
229 ;  Owen  v.  Arvis,  2  Butcher  22. 

Rumjon,  for  defendants. 
Vol.  i.  k 


206  CASES  IN   CHANCERY. 

Sayre  et  al.  v.  Fredericks  et  al. 

The  Chancellor.  The  complainants  are  execution  credi- 
tors of  Nicholas  J.  Fredericks  upon  three  several  judgments, 
amounting  to  about  $500.  When  these  debts  were  incurre-d, 
the  debtor  owned  real  estate  in  Newark  to  the  value  of  about 
$3000,  subject  to  encumbrances  amounting  to  ^1200.  After 
the  first  suit  was  instituted,  and  before  judgment  was  re- 
covered, the  debtor  mortgaged  the  land  to  Eify  Clark  for 
$1248,  and  conveyed  the  fee  to  Daniel  F.  Conklin,  tlie  other 
defendant,  for  the  alleged  consideration  of  $350.  The  bill 
charges  that  the  mortgage  and  the  deed  are  fraudulent  and 
void  as  against  creditors.  The  answer  denies  the  fraud,  and 
alleges  that  the  mortgage  was  given  in  trad  to  secure  debts 
due  from  the  mortgagor  to  the  heii'S  of  his  father,  and  that 
the  deed  was  given  in  payment  of  a  debt  due  from  the  grantor 
to  the  grantee. 

It  is  objected  that  the  trust  is  not  in  writing,  and  there- 
fore void  under  the  eleventh  section  of  the  act  for  the  pre- 
vention of  frauds  and  perjuries.     Nix.  Dig.  330,  §  11. 

The  statute  in  terms  applies  only  to  trusts  of  lands.  It 
does  not  extend  to  trusts  of  personalty.  Nab  v.  Nah,  10 
Mod.  404 ;  Roberts  on  Frauds  94. 

The  debt  is  the  subject  of  the  trust.  The  mortgage  \i  a 
mere  security  for  the  payment  of  the  debt.  The  assignment 
of  the  debt  carries  with  it  the  mortgage  as  a  consequence.  A 
mortgage  of  land  is  not  a  conveyance  within  the  statute  of 
frauds,  so  as  not  to  be  assignable  without  writing.  Martin 
V.  Mowlin,  2  Burr.  969 ;  Browne  on  Stat,  of  Frauds  65 ;  2 
Story's  Eg.  Jur.,  §  1016 ;  4  Kent's  Com.  159. 

If  the  mortgage  was  in  fact  given  to  secure  a  debt  due  to 
other  persons  than  the  mortgagee,  there  would  be  a  resulting 
trust  by  implication  of  law  in  their  favor,  which  is  expressly 
excepted  from  the  operation  of  the  statute.  Ni.v.  Dig.  330, 
§12. 

Mr.  Eden,  in  his  note  to  Fordi/oe  v.  Willis,  3  Brown  s  Ch. 
R.  588,  states  that  declarations  of  trust  of  personal  })roperty 
are  in  the  same  situation  as  all  declarations  of  trust  were 
before  the  statute.     But  that  he  has  not  been  able  to  find  an 


MAY  TERM,  1863.  207 

Sayre  et  al.  v.  Fredericks  et  al. 

instance  of  a  declaration  of  trust  of  personal  property,  evi- 
denced only  by  parol,  having  been  carri-ed  into  execution. 
And  although  the  statute  does  not  extend  to  trusts  of  per- 
sonalty— and  although  it  is  at  this  day  well  settled  that  trusts 
by  implication  may,  by  parol,  be  engrafted  u})on  a  written 
instrument  against  the  terms  of  the  deed  itself,  parol  evidence, 
to  raise  an  express  trust  upon  the  terms  of  the  instrument, 
is  received  with  great  caution,  and  must  be  very  clear  to 
warrant  a  court  in  establishing  the  trust.  Fordyee  v.  Willis, 
3  Bro.  Ch.  R.  577  ;  Eobeiis  on  Frauds  94  ;  4  Kent^s  Com. 
305 ;  1  Greenl.  Fv.,  §  266. 

The  mode  of  establishing  the  trust  is  obviously  a  question 
which  concerns  the  trustee  and  cestui  que  trust  rather  than  a 
stranger,  and  with  which  the  creditor  in  this  case  has  in  fact 
no  concern,  save  as  it  may  incidentally  affect  the  question  of 
the  bonajides  of  the  conveyance. 

Nor  can  the  mortgage  be  assailed  by  the  creditor  on  the 
ground  that  it  is  in  the  nature  of  an  assignment  for  the  pay- 
ment of  debts,  and  therefore  void,  inasmuch  as  it  prefers 
certain  creditors  over  others.  The  real  question  in  the  cause 
is,  whether  the  conveyances  were  made  in  good  faith,  or 
whether  they  were  designed  to  protect  the  debtor's  property 
from  his  other  creditors,  and  on  that  account  fraudulent  and 
void.  The  case  rests  entirely  upon  the  answer  of  the  de- 
fendants— the  debtor  and  his  alienees,  and  the  testimony  of 
the  debtor  himself.  The  admitted  facts  are,  that  the  mort- 
gage and  the  deed  were  made  upon  the  same  day,  and  that 
they  covered  the  whole  of  the  defendant's  real  estate.  The 
personal  estate  was  covered  and  subsequently  exhausted  by 
executions  issued  upon  confessed  judgments.  At  the  time  of 
the  conveyance  a  suit  by  the  complainants  was  pending 
against  the  debtor  for  the  recovery  of  a  part  of  their  debt. 
The  debtor  was  insolvent.  The  mortgage  was  made  to  his 
sister.  The  deed  to  his  brother-in-law.  The  mortgage  was 
given  in  terms  to  secure  a  debt  of  $1248,  due  to  the  mort- 
gagee.    The  instrument  is  silent  as  to  any  trust.     The  answer 


208  CASES  IN  CHANCERY. 

Sayre  et  al.  v.  Fi*edericks  et  al. 

admits  that  no  such  debt  was  due  to  the  mortgagee.  It  sets 
up,  by  way  of  consideration  for  the  mortgage,  that  it  was  in 
fact  given  in  payment  of  a  debt  due  from  the  mortgagor  to 
his  brotiiers  and  sisters,  being  the  proceeds  of  the  sale  of  a 
tract  of  land  belonging  to  their  father,  which  had  been  sold 
by  the  mortgagor,  and  the  proceeds  never  accounted  for  to 
the  heirs-at-law.  That  sale  was  made  in  1843,  eighteen 
years  and  six  months  before  the  mortgage  was  given.  The 
land  sold  for  $700.  The  mortgagor,  as  one  of  ti)e  heirs,  was 
entitled  to  one  seventh  of  the  amount.  The  mortgage  was 
given  for  the  residue  of  the  proceeds  of  the  sale,  with  eigh- 
teen years  and  six  months  interest,  no  deduction  appearing 
to  have  been  made  for  commissions,  or  for  the  costs  and  ex- 
penses of  the  sale.  No  settlement  of  the  account  had  ever 
been  made.  The  amount  due  the  heirs  had  never  been  as- 
certained. There  was  no  written  recognition  of  the  existence 
of  the  indebtedness.  No  payment  had  ever  been  made  on 
account  of  it.  When  the  mortgage  was  given,  no  receij)t  or 
discharge  for  these  claims  was  given  by  the  mortgagee  to  the 
mortgagor.  The  other  heirs,  for  whose  benefit  the  mortgage 
is  pretended  to  have  been  given,  were  not  present.  They 
lived,  many  of  them,  in  remote  parts  of  the  country.  They 
were  not  consulted  in  regard  to  it.  They  had  no  knowledge 
of  the  transaction,  and,  so  far  as  appears,  were  never  notified 
of  the  alleged  trust  in  their  behalf.  Their  rights  were  in  no 
wise  protected  or  even  recognized  by  the  terms  of  the  mort- 
gage. One  of  the  heirs  was  dead,  leaving  infant  children. 
No  provision  was  made  by  which  their  rights  could  be  ascer- 
tained or  enforced.  Tlie  arrangement  was  made  under  the 
advice  of  counsel. 

Admitting  the  competence  of  parol  evidence  to  establish 
the  trust,  what  evidence  could  have  been  produced  to  over- 
come the  terms  of  the  deed,  sustained  by  the  evidence  of  the 
mortgagor?  What  honest  trustee  would  have  consented  to 
accept  a  trust  upon  such  terms  ?  What  intelligent  counsel 
would  have  advised   or  sanctioned    it?     Is   it  credible   that 


MAY  TERM,  1863.  209 

Sayre  et  al  v.  Fredericks  et  al. 

such  a  transaction  ever  could  have  occurred,  with  or  with- 
out the  sanction  of  counsel,  if"  it  were  designed  in  good  faith 
to  secure  dehts  due  to  the  heirs?  May  it  not  safely  be 
assumed,  not  only  as  probable  but  as  certain,  that  no  such 
idea  was  in  contemplation  at  the  time  of  the  execution  of  the 
mortgage?  The  deed  contemporaneously  made  to  the  brother- 
in-law  of  the  debtor,  was  for  the  alleged  consideration  of  $350. 
The  real  consideration  is  admitted  to  have  been  a  promissory 
note  of  the  debtor  to  James  Conklin,  bearing  date  on  the 
tenth  day  of  July,  1852,  for  $228.21,  with  interest  from  date. 
No  payment  of  principal  or  interest  had  been  made  on 
account.  The  evidence  shows  that  it  had  long  been  regarded 
as  of  no  value.  The  grantee  had  no  need  for  the  premises 
and  no  desire  to  purchase.  The  grantor  had  no  desire  to 
sell  or  to  part  with  the  possession  of  the  property.  He  in 
fact  continued  to  occujiy  it  after  the  sale,  as  he  did  before. 
It  is  difficult  to  conceive  of  a  case  having  more  unequivocal 
badges  of  fraud.  It  is  impossible,  I  think,  to  look  at  the 
admitted  facts  of  the  case  without  a  conviction  that  the  con- 
veyances of  the  property  by  the  debtor  were  not  made  in 
good  faith  for  the  purpose  of  paying  his  debts,  but  were  de- 
signed to  protect  the  property  from  the  claims  of  other 
creditors. 

It  is  no  answer  to  say  that  debts  barred  by  the  statute  of 
limitations  may  constitute  a  valuable  consideration  for  a  con- 
veyance. The  real  question  is,  whether  the  transaction  was 
in  good  faith.  If  it  was  noj^  it  is  no  matter  what  the  con- 
sideration was.  Whether  a  conveyance  be  fraudulent  or  not, 
depends  upon  its  being  made  upon  good  consideration  and 
bona  fide.  It  is  not  sufficient  that  it  be  upoft  good  consid- 
eration or  bona  fide;  it  must  be  both.  If  a  conveyance  be 
defective  in  either  particular,  although  valid  between  the 
parties,  and  their  representatives,  it  is  void  as  to  creditors. 
1  Story's  Eq.  Jar.,  §  353. 

Nor  does  it  at  all  militate  against  this  conclusion  that  the 
answer  denies  the  existence  of  fraud.     Constructive  fraud  is 


210  CASES  IN  CHANCERY. 

Diercks  v.  Kennedy. 

not  a  fact,  but  a  conclusion  of  law  from  ascertained   facts. 
Although  the  answer  denies  the  fraud,  it  nevertheless  admits 
facts  from  which  the   existence  of  fraud  follows  as  a  natural 
and  legal,  if  not  a  necessary  and  unavoidable  conclusion. 
The  complainants  are  entitled  to  relief. 

Cited  in  Cutler  v.  Tultle,  4  C.  E.  Gr.  560. 


Peter  F.  Diercks  vs.  Samuel  Kennedy. 

1.  It  is  no  valid  objection'  to  a  defence  of  usun',  that  the  mortgage 
sought  to  be  foreclosed  was  given  for  a  part  of  the  purchase  money  upon  a 
contract  for  the  sale  of  land,  and  not  for  a  technical  loan  of  money. 

2.  The  taking  of  illegal  interest,  either  upon  a  lending  of  money,  or 
upon  the  forbearance  of  a  debt,  constitutes  usury. 

3.  The  forbearance,  or  giving  time  for  the  payment  of  a  debt,  is  in  sub- 
stance a  loan. 

4.  Where  the  contract  upon  its  face  is  strictly  legal,  it  will  not  be  pre- 
sumed that  the  parlies  had  in  contemplation  an  illegal  stipulation. 

5.  Where  a  debtor  wilfully  admits  a  greater  liability  than  actually 
exists,  or  conceals  the  equity  or  defence  on  which  he  subsequently  relies, 
such  concealment  or  admission  will  be  absolutely  conclusive  in  favor  of 
an  assignee,  if  acted  on  by  hini  in  accepting  the  assignment. 


Beasley,  for  complainant. 

Williamson,  for  defendant. 

Cases  cited  by  complainant's  counsel.  McMurtry  v.  Give- 
ans,  2  Beas.  261 ;  Melntyre  v.  Parks,  3  Melc.  207;  2  Par- 
sons 2>^4i;  Flo'per  V.  Edwards,  Cowper  112;  Peete  v.  Bid- 
good,  7  Barn,  &  Cress.  453  ;  Va7i  Schaick  v.  Edwards,  2 
Johns.  Cas.  355 ;  Bank  of  United  States  v.  Waggener,  9 
Peters  401  ;  Durant  v.  Banta,  3  Butcher  624;  Tate  v.  Wel- 
lings,  3  T.  R.  538 ;  Barclay  v  Walmsley,  4  East  55 ;  Brooks 
V.  Avery,  4  Comst.  225 ;  Berry  v.  Walker,  9  B.  Mon.  464  ; 
Shirkey  V .  Hunt,  18  Texas  8S3  ;  Hoyt  v.  Bridgewater  Cop- 
per 3Iining  Co.,  2  ITalst.   Ch.  R.  253 ;  Ibid.  625 ;  3  Lead. 


MAY  TERM,  1863.  211 

Diercks  v.  Kennedy. 

Cases  in  Eq.  370;  Petrie  v.  Feeler,  21  Wead.  172;  Watson's 
Ex'rs  V.  McLaren,  19  Wend.  557;  Davison  v.  Franklin,  1 
^ar?i.  tt"  Ad.  142 ;  1  SW^/'s  £"^7.  /(«-.,  §  191-2-3  ;  Ross  v. 
Elizabeihtown  and  Somerville  R.  R.  Co.,  1  Green's  Ch.  R. 
434;  Berrisford  v.  Milward,  2  ^4^^.  49  ;  E't^si  /nc/ta  Co.  v. 
'P7wce7i<,  J6i(/.  83;  Ilobbs  v.  Norton,  1  Fe/'u.  136;  Moeaita 
V.  Murgatroyd,  1  P.  IF.  392  ;  Wendell  v.  Fan  Rensselaer,  1 
John.  Gh.  R.  353  ;  Parshall  v.  Lamourenx,  1 1  ^jn.  Zaw 
i^f//.  186,  (/an.  1863). 

The  Chancellor.  The  only  defence  to  the  suit  is  that 
the  mortgage  sought  to  be  foreclosed  is  usurious.  It  is  no 
valid  objection  to  the  validity  of  the  defence  th.it  the  mort- 
gage was  given  for  a  part  of  the  purchase  money,  upon  a  con- 
tract for  the  sale  of  land,  and  not  for  a  technical  loan  or  lend- 
ing of  money.  Usury,  according  to  Sir  Edward  Coke,  is  a 
contract  upon  a  loan  of  money,  or  giving  days  for  forbearing 
of  money,  debt,  or  duty,  by  way  of  loan,  chevisance,  shifts, 
sales  of  wares,  or  other  doings  whatsoever.  3  Inst.  151,  c. 
70  ;  Gomyn  on  Usury  1. 

The  taking  of  illegal  interest,  either  upon  a  lending  of 
money  or  the  forbearance  of  a  debt,  constitutes  usury.  The 
forbearance  or  giving  time  for  the  payment  of  a  debt,  is  in 
substance  a  loan.  Spurrier  v.  Mayoss,  1  Vesey  531  ;  Dewar 
V.  Span,  3  Term  R.  425  ;  Van  Schaick  v.  Edwards,  2  Johns. 
Gas.  355. 

That  this  is  the  legislative  construction  of  our  statute  in  re- 
gard to  usury,  is  very  clear  from  the  language  of  the  various 
enactments  upon  the  .subject.  The  original  act  against  usury, 
Nix.  Dig.  401,  §  1,  prohibits  the  taking  of  more  than  six 
per  cent,  only  uj)on  a  contract  for  loan  of  money,  wares, 
&c.  The  various  supplements  to  the  act  authorizing  a 
higher  rate  of  interest,  include  in  terms  not  only  a  loan,  but 
also  "  the  forbearance  or  giving  day  of  jv.iyment  for  any 
money,  wares,"  &c.  Nix.  Dig.  402,  §  7,  8 ;  Pamph.  L. 
1858,  34. 

If  the  original  act  had  not  been  understood  to  include  the 


212  CASES  IN  CHANCERY. 

Diercks  v.  Kennedy. 

forbearance  or  giving  day  of  payment  for  a  debt,  ti)e  phrase- 
ology of  the  supplements  would  iiave  been  superfluous  and 
unmeaning. 

In  this  case  moreover,  the  rate  of  interest  forms  no  part 
of  the  contract  for  the  exchange  of  lands.  The  written  con- 
tract stipulates  merely  for  the  giving  of  mortgages.  It  is 
silent  both  as  to  the  time  of  payment  and  the  rate  of  inter- 
est. The  written  contract  cannot  be  changed  by  parol  ; 
much  less  will  it  be  presumed,  where  the  contract  upon  its 
face  is  strictly  legal,  that  the  parties  had  in  contemplation 
an  illegal  stipulation.  The  mortgagee  testifies  that  there  was 
a  parol  agreement  made  between  himself  and  the  mortgagor, 
that  seven  per  cent,  interest  should  be  paid  upon  the  mort- 
gage. This  verbal  contract  was  made  in  the  county  of  Union. 
I  find  no  evidence  whatever  to  show  where  the  bond  and 
mortgage  were  executed.  If  the  parol  agreement  to  take  in- 
terest at  the  rate  of  seven  per  cent,  was  made  in  the  county 
of  Union,  where  the  mortgagor  resided,  and  the  bond  and 
mortgage  were  executed  there,  the  contract  is  clear  of  usury. 
McMurtry  v.  Glveans,  2  Beas.  351. 

The  legality  of  the  mortgage  cannot  be  impaired  by  the 
fact  that  the  written  contract  for  the  exchange  of  lands  was 
executed  elsewhere. 

I  think,  therefore,  that  there  is  an  entire  failure  of  evi- 
dence to  show  that  the  contract  is  usurious.  But  admitting 
the  mortgage  to  have  been  tainted  with  usury,  can  the  de- 
fendant avail  himself  of  the  defence  ? 

Upon  the  assignment  of  the  mortgage  by  Riggs,  the  origi- 
nal mortgagee,  to  Diercks,  the  complainant,  the  mortgagor 
gave  a  written  certificate  that  the  mortgage  was  a  good  and 
valid  lien  upon  the  premises  ;  that  it  was  given  tor  a  part  of 
the  purchase  money,  and  that  there  then  existed  no  legal  or 
equitable  defence  thereto.  Upon  the  faith  of  that  represen- 
tation the  complainant  took  an  assignment  of  the  mortgage. 
There  is  no  pretence  that  he  was  aware  of  the  invalidity  of 
the  contract.  The  defendant  is  estopped  in  equity  by  his  own 
representation  from  setting  up  the  defence  of  usury. 


1 


MAY  TERM,  1863.  213 

Way  V.  Bragaw  et  al. 

Where  a  debtor  wilfully  admits  a  greater  liability  than 
actually  exists,  or  conceals  the  equity  or  defence  on  which 
he  subsequently  relies,  such  concealment  or  admission  will 
be  absolutely  conclusive  in  favor  of  the  assignee,  if  acted  on 
by  him  in  accepting  the  assignment.  Davison  v.  Franhlm, 
1  Barn.  &  Ad.  142;  Watson's  Ex'rs  v.  McLaren,  19  Wend. 
657;  3  Lead.  Cases  in  Eq.  [Am.  ed.,  185S,)  370,  and  cases 
there  cited. 

In  accordance  with  this  principle,  it  was  held  by  the  Su- 
preme Court  of  xsew  York  in  ParshaU  v.  Lamoureux,  that 
if  the  holder  of  a  note,  on  the  occasion  of  its  sale  and  trans- 
fer, represents  to  the  purchaser  that  it  was  given  for  a  valu- 
able consideration,  and  the  i)urchaser  takes  it  upon  the  faith 
of  such  representation  and  in  ignorance  of  the  fact  that  the 
note  has  never  had  a  legal  existence,  the  holder  will  be  es- 
topped from  availing  himself  of  the  defence  of  usury.  37 
Barb.  189  ;  Amer.  Law  Reg.  for  January,  1863,  j).  186. 

The  principle  upon  which  this  doctrine  rests  admits  of  a 
much  broader  application  and  is  founded  upon  the  clearest 
equity.  2  Smith's  Lead.  Cases,  [Am.  ed.,  1844,)  467  ;  1 
Story's  Eq.,  §  191-3. 

The  complainant  is  entitled  to  a  decree. 


George  M.  Way  vs.  Isaac  A.  Bragaw  and  others. 

1.  A  bill  filed  to  obtain  satisfaction  of  a  judgment  at  law  is  not 'demur- 
rable on  the  ground  of  multifariousness,  because  it  seeks  to  remove  fraudu- 
lent conveyances  and  encumbrances,  and  also  to  bring  witliin  tbe  reach  of 
the  judgment,  equitable  interests  which  are  not  the  subjects  of  execution 
at  law. 

2.  Where  the  case  made  by  the  bill  is  so  entire,  that  it  cannot  be  prose- 
cuted in  several  suits,  and  yet  each  of  the  defendants  is  a  necessary  party 
to  some  part  of  the  case  as  stated,  neither  of  the  defendants  can  demur  for 
multifariousness  or  for  a  misjoinder  of  causes  of  action,  in  some  of  which 
he  has  no  interest. 

3.  Where  a  judgment  creditor  files  a  bill  in  equity  to  obtain  aid  in  en- 


214  CASES  IN  CHANCERY. 

Way  V.  Bragaw  et  al. 

forcing  the  payment  of  his  judgment  at  law,  it  is  no  ground  of  demurrer 
that  other  creditors,  not  in  equal  degree,  are  not  made  parties  to  the  bill. 

4.  A  plea  of  another  suit  depending  for  the  same  cause  in  bar  of  a  suit 
in  equity,  can  only  be  of  a  suit  depending  in  the  same,  or  in  some  other 
court  of  equity. 

5.  AVhere  a  suit  is  pending  for  the  same  cause  in  a  court  of  law,  all  that 
the  defendant  can  ask,  is  an  order  putting  the  complainant  to  his  election, 
whether  he  will  proceed  at  law  or  in  equity. 

6.  The  complainant  will  not  be  put  to  his  election,  unless  the  suit  at 
law  is  for  the  same  cause,  and  the  remedy  afforded  co-extensive  and 
equally  beneficial  with  the  remedy  in  equity. 


ParheVy  for  defendants,  in  support  of  the  demurrer,  as  to 
the  question  of  naultifariousness,  cited  Story's  Eq.  PL,  §  271- 
286-530-540-747  ;  Fellows  v.  Fellows,  4  Cowen  682  ;  Brhik- 
erhoff  V.  Brown,  6  Johns.  Ch.  B.  139. 

Beasley,  for  complainant,  contra. 

As  to  multifariousness.  Attorney  General  v.  Corporation 
of  Poole,  4  Mylne  <fc  C.  31  ;  Turner  v.  Boblnson,  1  Sim.  & 
Stu.  314 ;  Cuyler  v.  Moreland,  6  Paige  274  ;  Brinkerlwff  v. 
Broion,  6  Johns.  Ch.  R.  139  ;  Fellows  v.  Fellows,  4  Cowen  682. 

As  to  rule  of  convenience.  Campbell  v.  Maokay,  1  Mylne 
&  C.  603;  Gaines  v.  Chew,  2  How.  619  ;  Oliver  v.  Piatt,  3 
Ibid.  333  ;  Story's  Eq.  PL,  §  534  ;  2  Dev.  &  Bat  Ch.  R.Sl. 

Suit  at  law  cannot  be  pleaded  in  bar  of  a  suit  in  equity. 
Mifford's  Eq.  PL  250 ;  Rogers  v.  Vosburgh,  4  Johns.  Ch.  R. 
84  ;  Jones  v.  Earl  of  Strafford,  3  P.  Wms.  90.  The  practice 
was  formerly  otherwise.     Beames'  Orders  177. 

The  party  must  elect  which  remedy  he  will  pursue.  1 
Hoffman's  Ch.  Pr.  342  ;  Tlllotson  v.  Ganson,  1  Vern.  103 ; 
Jones  V.  Earl  of  Strafford,  3  P.  Wms.  90 ;  Hlnde's  Ch.  Pr. 
178  ;  2  DanielVs  Ch.  Pr.  722  ;  Ex'rs  of  Conover  v.  Conover, 
Saxton  409. 

Prior  suit  no  bar,  unless  the  objects  of  the  second  suit  are 
completely  attainable  in  such  prior  suit.  2  Daniell's  Ch.  Pr. 
721  ;  Law  v.  Rigby,  4  Bro.  Ch.  R.  60  ;  Pickford  v.  Hunter, 
5  Simons  122 ;  Crofts  v.  Worthy,  1  Chan.  Cases  241  ;  Story's 
Eq.  PL,  §  739,  742 ;  Hertell  v.  Van  Buren,  3  Edw.  Ch.  R.  20. 


MAY  TERM,  1863.  215 

Way  V.  Bragaw  et  al. 

The  Chancellor.  The  bill  is  filed  by  a  jiulgnicnt  aod 
execution  creditor  of  Bragaw,  oii«  of  the  defendants,  to 
obtain  the  aid  of  this  court  in  enforcing  the  j)ayraent  of  his 
judgment  at  law.  Tiie  bill  charges  that  the  real  estate  of 
the  debtor  defendant  is  covered  by  a  fraudulent  conveyance, 
made  on  or  about  the  first  of  April,  1861,  to  Charles  P.  Hol- 
combe,  one  of  the  defendants.  That  personal  estate  of  the 
debtor  to  a  large  amount  is  held  by  one  Wesley  Benner, 
under  a  claim  of  title  derived  from  a  collusive  and  fraudu- 
lent sale  under  a  pretended  judgment  and  execution  of  said 
Benner  against  the  debtor  ;  and  that  the  debtor  also  holds 
certain  equitable  interests  and  property  which  his  execution 
at  law  will  not  reach.  The  prayer  of  the  bill  is  that  the 
conveyance  of  the  real  estate  to  Holcombe,  and  the  pretended 
title  of  Benner  to  the  personal  estate,  may  be  declared  fraud- 
ulent and  void,  and  that  the  property,  legal  and  equitable  of 
the  debtor,  may  be  applied  in  satisfaction  of  the  complain- 
ant's judgment.  To  this  bill  there  is  a  demurrer  by  Hol- 
combe and  Benner,  and  a  plea  by  Bragaw. 

The  first  ground  of  demurrer  is  that  the  bill  is  multifa- 
rious. The  sole  purpose  of  the  bill  is  to  enable  the  com- 
plainant to  obtain  satisfaction  of  his  judgment  at  law  out  of 
the  property  of  the  defendant.  To  this  end  the  complainant 
seeks  to  remove  out  of  his  path  fraudulent  conveyances  and 
encumbrances,  and  to  bring  within  the  reach  of  his  judgment 
equitable  interests  which  are  not  the  subjects  of  execution  at 
law.  These  objects  may  properly  be  united  in  the  same  bill. 
Cuyler  v.  3Ioreland,  6  Pairje  273. 

Nor  is  the  bill  multifarious  because  it  seeks  to  set  aside  as 
fraudulent,  distinct  conveyances  or  encumbrances  upon  the 
defendants'  property,  in  favor  of  two  or  more  diflPerent  per- 
sons. 

The  grounds  of  suit  are  not  wholly  distinct  and  uncon- 
nected. They  form  parts  of  a  series  of  transactions,  or  of  a 
course  of  dealing  by  which  it  is  alleged  that  the  debtor  is 
seeking  to  defraud  his  creditors.  They  all  tend  to  one  end, 
the  defeat  of  the  plaintiff's  claim,  and  although  it  is  sought 


216  CASES  IN  CHANCERY. 


Way  V.  Bragaw  et  al. 


to  set  aside  two  distinct  encumbrances,  they  are  necessarily 
connected  not  only  in  their  operation  against  the  complain- 
ant's remedy  at  law,  but  in  the  relief  which  is  to  be  admin- 
istered. On  a  decree  in  favor  of  the  complainant  against 
both,  the  real  estate  can  only  be  sold  to  pay  the  balance  re- 
maining due  after  the  application  of  the  personal  estate  to 
the  complainant's  claim. 

So  the  defendants  are  united  in  a  common  design.  Each 
is  charged  with  colluding  with  the  debtor  in  order  to  defraud 
his  creditors. 

Where  there  is  one  entire  case  stated  as  against  the  debtor, 
it  is  no  objection  that  one  or  more  of  the  defendants,  to 
whom  parts  of  the  property  have  been  fraudulently  con- 
veyed, had  nothing  to  do  with  other  fraudulent  transactions. 
The  case  against  the  debtor  is  so  entire  that  it  cannot  be 
prosecuted  in  several  suits,  and  yet  each  of  the  defendants  is 
a  necessary  party  to  some  part  of  the  case  stated.  In  such 
case  neither  of  the  defendants  can  demur  for  multifarious- 
ness, or  for  a  misjoinder  of  causes  of  action,  in  some  of  which 
he  has  no  interest.  Attorney  Gemeral  v.  The  Corporation  of 
Poole,  4  Mylne  &  C.  31  ;  Brinkerhoff  v.  Brown,  4  Johns. 
Ch.  R.  671;  Fellows  v.  Fellows,  A  Cowen  682;  Boyd  v. 
Hoyt,  5  Paige  65  ;  Turner  v.  Robinson,  1  Sim.  &  Stu.  313 ; 
Story's  Eq.  PL,  §  271,  b. 

In  Boyd  v.  Hoyt,  5  Paige  78,  Chancellor  Walworth  states 
the  rule  thus:  "Where  the  object  of  a  suit  is  single,  but 
different  persons  have  a  claim  to  have  separate  interests  in 
distinct  or  independent  questions,  all  connected  with  and 
arising  out  of  the  single  object  of  the  suit,  the  complainant 
may  bring  such  different  persons  before  the  court  as  defend- 
ants, so  that  the  whole  object  of  the  bill  may  be  obtained  in 
one  suit,  and  to  prevent  further  unnecessary  and  useless  liti- 
gation." 

The  second  ground  of  demurrer  is,  that  the  bill  should  be 
for  the  benefit  of  all  the  creditors  of  Bragaw  jointly  with  the 
complainant. 

The  same  objection  was  raised  under  similar  circumstances 


MAY  TERM,  1863.  217 

Way  V.  Bragaw  et  al. 

in  Edgell  v.  Haywood,  3  Atlc.  357.  But  Lord  Hanhvicke 
said  :  "The  person  who  first  sues  has  an  advantage  by  ins 
legal  diligence  in  all  cases.  The  complainant,  by  his  judg- 
ment and  execution  at  law,  and  by  his  diligence  in  this  court, 
has  obtained  a  position  which  entitles  him  to  priority  over 
the  other  creditors  of  the  debtor.  He  does  not  stand  in  the 
attitude  of  a  conij)lainant  in  an  ordinary  creditor's  l)ill.  It 
does  not  apj)ear  that  there  is  any  other  creditor  of  equal 
degree  with  the  complainant."  Clarkson  v.  Dcpeysler,  3  Paige 
320  ;  Parmelee  v.  Egan,  7  Paige  610  ;  Grosvenor  v.  Allen, 
9  Paige  74  ;  Fanihain  v.  Campbell,  10  Paige  598. 

The  debtor  has  pleaded  in  bar  of  the  suit,  proceedings 
pending  in  the  Supreme  Court  under  the  provisions  of  the 
act  to  prevent  fraudulent  trusts  and  assignments.  Nix.  Dig. 
271,  §  23. 

A  plea  of  another  suit  depending  for  the  same  cause  in  bar 
of  a  suit  in  equity,  can  only  be  of  a  suit  depending  in  the  same, 
or  in  some  other  court  of  equity.  3Iiiford's  PL,  (by  Jeremy) 
236,  246,  oiotes  i,  h. 

Where  a  suit  is  pending  for  the  same  cause  in  a  court  of 
law,  all  that  the  defendant  can  ask  is  an  order  ])utting  the 
complainant  to  his  election,  whether  he  will  proceed  at  law 
or  in  equity.  Ex'rs  of  Conover  v.  Conover,  8axton  409  ; 
Rogers  v.  Vosburgh,  4  Johns.  Ch.  R.  84  ;  1  Hoffman'' s  Ch. 
Pr.  3^2  ;  Story's  Eq.  PL,  §  742. 

Such  election  has  virtually  been  made.  If  it  be  conceded 
as  alleged  in  the  defendant's  [)lea,  that  the  order  made  by 
the  justice  by  whose  direction  the  proceedings  at  law  were 
instituted  for  the  discontinuance  of  those  proceedings  was 
inoperative,  not  having  been  made  by  the  Supreme  Court  in 
which  the  suit  was  pending,  still  it  may  safely  be  assumed 
that  the  order  for  discontinuance  having  been  made  at  the 
instance  of  the  complainant,  and  proceedings  having  since 
been  commenced  by  him  in  equity,  he  would  not  be  permit- 
ted to  proceed  at  law  to  the  prejudice  of  the  defendants' 
rights.  This  court  will,  under  the  circumstances,  regard  tha 
election  as  in  fact  made. 


218  CASES  IN  CHANCERY. 

Norris  et  al.  v.  Ex' is  of  Thomson  et  al. 

If  the  proceedings  of  tiie  Supreme  Court  could  be  re- 
garded as  a  suit  in  equity,  and  in  this  resjiect  tlie  defendant's 
plea  be  free  from  objection,  the  pica  cannot  be  sustained.  It 
is  obvious  from  an  examination  of  the  complainant's  bill  and 
of  the  statute  und-er  wliich  the  proceedings  at  law  were  in- 
stituted, that  ihe  remedy  in  the  two  suits  cannot  be  co-ex- 
tensive. 

The  former  suit  must  not  only  be  for  the  same  cause,  but 
the  effect  must  be  the  same.  The  remedy  must  be  co-exten- 
sive, and  equally  beneficial  to  the  complainant.  Law  v.  Rlgby, 
4  Broivri's  Ch.  R.  63 ;  Plchford  v.  Hunter,  5  Simons  122 ;  2 
DanieWs  Ch.  Fr.  721. 

The  receiver,  if  appointed  at  law,  must  come  into  equity  to 
attain  the  end  which  is  sought  to  be  attained  by  the  present 
suit. 

The  plea  and  demurrers  are  overruled. 

Cited  in  Fulton  v.  Golden,  10  C.  E.  Gr.  353  ;  Randolph  v.  Daly,  1  C.  E. 
Gr.  316. 


Caroline  Norris  and  others  vs.  The  Executors  of  John 
R.  Thomson  and  others. 

1.  To  constitute  a  specific  legacy,  the  thing  bequeathed  must  be  specified 
and  distinguished  from  the  rest  of  the  testator's  estate. 

2.  The  intention  of  the  testator  must  be  expressed  in  reference  to  the 
thing  bequeathed,  or  it  must  otherwise  clearly  appear  from  the  will. 

3.  To  guard  against  an  ademption  or  extinguishment  of  the  legacy,  con- 
trary to  tlie  intention  of  the  testator,  the  general  leaning  of  the  court  is 
against  making  tlie  legacy  specific. 

4.  A  bequest  of  government  securities,  or  of  shares  in  public  companies, 
or  of  bonds  of  corporations  outstanding  and  circuhiting  as  well  known  se- 
curities at  the  date  of  the  will,  is  not  a  specific  bequest,  unless  there  is  a 
clear  reference  to  the  corpus  of  the  fund, 

5.  A  legacy  may  be  rendered  specific  bj'  the  use  of  the  term  "  my  "  stock, 
or  the  stock  now  "in  my  possession,"  or  "  standing  in  my  name,"  or  "  owned 
by  me,"  or  by  any  other  form  of  expression  which  clearly  indicates  the 
purpose  of  the  testator  to  give  the  specific  thing,  and  not  to  designate  the 
quantity  or  species  of  the  thing  bequeathed. 

6.  If,  by  the  terms  of  the  will,  there  be  no  such  identification  of  the 


MAY  TERM,  1863.  219 

Norris  et  al.  v.  Ex'rs  of  Thonawn  et  al. 

thing  bequeathed  the  legacy  is  general,  and  if  not  found  in  the  possession 
of  the  testator  at  his  death,  is  tantamount  to  u  direction   to  the  executors' 
to  purchase  such  securities  for  the  legatee. 

7.  The  mere  possession  by  the  testator,  at  the  date  of  his  will,  of  a  larger 
amount  of  stocks  or  bonds  tlian  are  beqneatlied,  will  not  make  the  bequest 
specific,  when  it  is  given  generally  of  slocks,  or  of  stocks  in  particular  funds 
without  further  explanation. 

8.  The  nature  of  the  legacy,  whether  general  or  specific,  will  be  found 
always  to  depend  upon  tlie  terms  of  the  gift  to  the  legatee,  without  re- 
ference to  the  circumstance,  whether  the  estate  was,  or  was  not  put  in 
trust. 


Tlie  bill  in  this  cause  was  filed  by  consent  to  settle  the 
coQStriiction  of  the  will  of  John  R.  Thomson,  deceased.  The 
question  was  as  to  the  character  of  certain  legacies  therein 
given  ;  whether  general  or  specific. 

Zabriskie,  for  complainants. 

Bradley,  for  defendants. 

Cases  cited  by  complainants  counsel.  Alsop\  appeal,  9 
Barr  374 ;  Blaclcstone  v.  Blackdone,  3  Wuttfi  335  ;  Foote  v. 
Worlhington,  22  Pick.  299 ;  LucUam's  estate,  1  Parsons'  Eq. 
R.\U',  \  Harris  192  ;  2  Wil'iams  on  Ex'rs  [ed.  1859)  1045  ; 
Ashburner  v.  Macguire,  2  Lead.  Cases  in  Eq.  {M  Am.  ed.)  482; 
Jeffreys  v.  Jeffreys,  3  Atk.  120  ;  White  v.  Winchester,  6  Pick. 
47;   Cuthbert  V.  Outhbert,.S  Yeates  486  ;  Hosking  w.  Nicholls, 

1  Young  &  Coll.  478 ;  Ifallevs  v.  Smith,  2  Drezvry  &  Smale 
210  ;  3  Williams  on  Ex'rs  1283. 

Cases  cited  by  defendants  counsel.     Ashburner  v.  Ilacguire, 

2  Lead.  Cases  in  Eq.  [Sd  Am.  ed.)  482  ;   Coleman  v.  Coleman, 

2  Vesey  639,  note;  Stout  v.  Hart,  2  Halst.  422  ;  1  Roper 
191,  192,  note  1  ;  2  Williams  on  Ex'rs  {bth  ed.)  1043,  1045  ; 
1  Roper  204,  note  3  ;  Cuthbert  v.  Cuthbert,  3  Yeates,  486 ;  1 
i^oper  205-213-214;  2  Williamson  Ex'rs  {5th  ed.)  1047; 
Tift  V.  Porter,  4  Seld.  516;  Sibley  v.  PerrT/,  7  Vesey  529; 
Robinson  v.  Addison,  2  Beav.  515;  Mathis'  Ex'r  v.  Mathis^ 

3  Harr.  66. 


220  ■       CASES  IN  CHANCERY. 

Norris  et  al.  v.  Ex'rs  of  Thomson  et  al. 

The  Chancellor.  The  bill  is  filed  by  the  legatees  of 
certain  bonds  and  sh'ires  of  stock  under  the  will  of  John  R. 
Thomson,  deceased,  to  recover,  as  part  of  their  respective 
legacies,  the  dividends,  interest,  and  income  accrued  and 
accruing,  on  the  respective  bonds  and  shares  of  stock  since 
the  death  of  the  testator.  The  sole  issue  made  by  the  plead- 
ings is,  whether  the  legacies  in  question  are  specific  or  gen- 
eral. If  specific,  it  is  admitted  that  the  complainants  are 
entitled  to  the  income  from  the  death  of  the  testator.  2 
Williams  on  Ex'rs,  {ed.  1849)  ]221 ;  2  Roper  on  Leg.  3.250. 

The  bequests  are  as  follows,  viz.  "  All  the  rest  and  resi- 
due of  my  real  and  personal  estate,  of  whatsoever  nature  or 
kind,  or  wheresoever  situate,  I  give,  devise,  and  bequeath  to 
John  M.  Reed,  Charles  Macalester,  and  Alexander  H.  Thom- 
son, their  heirs,  executors,  and  administrators,  in  trust  for 
the  following  uses  and  purjioses: 

'^  First.  To  give  to  my  sister,  Mrs.  Caroline  Norris,  two 
hundred  and  fitly  shares  of  the  capital  stock  of  the  New 
York  and  Baltimore  Transportation  Line;  to  ray  sister, 
Adeline  Thomson,  two  hundred  and  fifty  shares  of  the  capital 
stock  of  the  said  line;  to  my  sister,  Amelia  Reed,  wife  of  the 
Hon.  John  M.  Reed,  two  hundred  and  fifty  shares  of  the 
capital  stock  of  the  said  line;  to  my  nephew,  Alexander 
Hamilton  Thomson,  one  hundred  and  twen.ty-five  shares  of 
the  capital  stock  of  the  said  line;  and  to  my  niece,  Elizabeth 
Norris,  one  hundied  and  twenty-five  shares  of  the  capital 
stock  of  the  said   line. 

^^  Secondly.  I  give  to  my  friends,  John  M.  Reed,  William 
H.  Gatzmer,  Richard  Shippen,  Dr.  Phineas  I.  Horwitz,  and 
Joseph  P.  Norris,  the  husband  of  ray  sister,  Caroline  Nor- 
ris, five  bonds  of  one  thousand  dollars  each,  of  the  Delaware 
and  Raritan  Canal  Company  and  Camden  and  Amboy  Rail- 
road and  Transportation  Company,  redeemable  in  1889;  one 
bond  to  each  one  of  the  above  named  legatees." 

The  admitted  facts  are  that  the  testator,  at  the  date  of  his 
will  and  at  the  time  of  his  death,  owned  and  possessed  cer- 
tain  shares  of    the  New  York  and    Baltimore  Transporta- 


MAY  TERM,  1863.  '  221 

Norris  et  al.  v.  Ex'rs  of  Thomson  et  al, 

tion  Line,  exceeding  in  number  the  amount  thereof  so  be- 
queathed by  him  ;  and  also  certain  bonds  of  the  Delaware 
and  Raritan  Canal  Company  and  Camden  and  Aud)oy  Rail- 
road and  Transportation  Company,  redeemable  in  1889, 
exceeding  the  number  bequeathed  as  aforesaid ;  and  also 
sundry  other  of  such  joint  bonds,  redeemable  in  other  years. 
At,  and  for  a  long  time  prior  to,  the  making  of  the  said  will, 
there  were  outstanding  and  circulating,  as  well  known  secu- 
rities in  the  stock  market  in  Philadelphia  and  elsewhere,  large 
amounts  of  the  bonds  of  the  said  Delaware  and  Raritan  C|^inal 
Company  and  Camden  and  Amboy  Railroad  and  Trans[)orta- 
tion  Company,  which  had  been  issued  at  different  periods, 
and  were  payable  respectively  in  different  years,  from  1863 
to  1889,  inclusive,  all  of  which  were  the  joint  bonds  of  said 
companies.  The  testator  was  loan  agent  of  the  said  joint 
companies  for  several  years  next  prior  to  his  death,  having 
his  office  as  such  agent  in  Philadelphia,  and  often  negotiated 
bonds  of  the  said  companies  on  their  behalf.  The  will  is 
dated  on  the  twentieth  of  July,  1862,  The  testator  died  at 
Princeton,  in  this  state,  the  place  of  his  domicil,  on  the 
twelfth  of  September,  in  the  same  year. 

The  general  principles  which  must  control  in  the  deter- 
mination of  this  question,  are  familiar  and  well  settled.  The 
authorities  are  very  numerous,  and  will  be  found  collected  in 
the  elementary  treatises  to  which  reference  is  made. 

To  constitute  a  specific  legacy,  the  thing  bequeathed  must 
be  specified  and  distinguished  from  the  rest  of  the  testator's 
estate  Purse  v.  Snaplin,  1  Atk.  ill  ;  StejjJienson  v.  Dow- 
son,  3  Beav.  349. 

The  intention  of  the  testator  must  be  expressed  in  reference 
to  the  thing  bequeathed,  or  it  must  otherwise  clearly  appear 
from  the  will.  1  Roper  on  Leg.  192,  204;  2  Williams  on 
Ex'rs  995. 

To  guard  against  an  ademption  or  extinguishment  of  the 
legacy,  contrary  to  the  intention  of  the  testator,  the  geneial 
leaning  of  the  court  is  against   making   the    legacy  specific. 

Vol.  I.  o 


222  CASES  IN  CHANCERY. 

Norris  et  al.  v.  Ex'rs  of  Thomson  et  al. 

Ex'rs  of  Cogdell  v.  Devisees  of  Testator,  3  Dcss.  373 ;  Foote, 
app't,  22  Pick.  302. 

In  the  application  of  these  principles,  it  is  a  settled  rule 
of  construction  that  a  bequest  of  government  securities,  or 
shares  in  public  companies,  is  not  a  specific  bequest,  unless 
there  is  a  clear  reference  to  the  corpus  of  the  fund.  1  Roper 
on  Leg.  214. 

The  same  principle  is  clearly  applicable  to  the  bonds  of 
corporations  which,  at  the  date  of  the  will,  were  outstanding 
and  circulating,  as  well  known  securities  in  the  stock  market. 

To  make  a  legacy  of  such  stocks  or  securities  specific, 
there  must  be  something  upon  the  face  of  the  will  to  indi- 
viduate them,  and  to  distinguish  them  from  all  others  of  the 
same  kind.  Thus  the  legacy  may  be  rendered  specific  by  the 
use  of  terra  "  my  "  stock,  or  the  stock,  or  part  of  the  stock,  now 
^' in  my  possession,"  or '' standing  in  my  name,"  or  "owned 
by  me,"  or  by  directing  it  to  be  sold  and  converted  into  money, 
or  by  any  other  form  of  expression  which  clearly  indicates 
the  purpose  of  the  testator  to  give  the  specific  thing,  and  not 
to  designate  the  quantity  or  species  of  the  thing  bequeathed. 
2  Williams  on  Ex'rs  997  ;  1  Roper  on  Leg.  204. 

If  by  the  terms  of  the  will  there  be  no  such  identification 
of  the  thing  bequeathed,  the  legacy  is  general  ;  and  if  not 
found  in  his  posession  at  his  death,  is  tantamount  to  a  di- 
rection to  the  executors  to  purchase  such  securiiies  for  the 
legatee. 

And  the  mere  possession  by  the  testator,  at  the  date  of  his 
will,  of  a  larger  amount  of  stocks  or  bonds  than  are  be- 
queathed,  will  not  make  the  bequest  specific,  when  it  is  given 
generally  of  stocks,  or  of  stocks  in  particular  funds,  without 
further  explanation.  1  Roper  on  Leg.  205  ;  2  Williams  on 
Ex'rs  999. 

In  the  various  legacies  to  the  complainants  the  language 
used  by  the  testator  is  of  the  most  general  character,  merely 
sufficient  to  indicate  the  species  of  the  thing  bequeathed. 
There  is  nothing  to  indicate  any  purpose,  much  less  a  "  clear 


MAY  TERM,  1863.  223 

Norris  et  al.  v.  Ex'rs  of  Thompson  et  al. 

intention  "  ou  the  part  of  the  testator,  to  bequeath  the  par- 
ticular shares  of  stock  or  bonds  held  by  him  at  the  date  of 
the  will,  or  any  other  specific  shares  or  bonds  of  the  species 
designated.  The  legacy  unquestionably,  by  its  terras  is  gen- 
eral, not  specijio. 

The  construction  of  the  will  is  in  no  wise  affected  by  the 
fact  that  the  estate  of  the  testator  was  given  to  trustees  for 
the  purposes  of  his  will.  This  incident  will  be  found  in 
many  of  the  reported  cases,  but  it  is  never  relied  upon,  or 
even  adverted  to,  as  of  any  significance  upon  the  question  of 
construction.  The  nature  of  the  legacy,  whether  general  or 
specific,  will  be  found  always  to  depend  upon  the  terms  of 
the  gift  to  the  legatee,  without  reference  to  the  circumstance 
M'hether  the  estate  was,  or  was  not,  put  in  trust. 

But  it  is  urged  that  the  testator,  by  his  will,  gave  to  the 
trustees,  with  the  corpus  of  his  estate,  the  stocks  and  bonda 
in  question,  in  trust  to  give  shares  and  bonds  of  the  desig- 
nated species  included  in  the  trust  fund,  to  the  various 
legatees.  And  it  is  said  that  the  case  is  analogous  to  that  of 
a  bequest  of  the  testator's  library,  in  trust  to  give  Boydell's 
Shakspeare  to  A,  and  tiie  Edinburgh  Encyclopaedia  to  B. 
The  cases  would  be  analogous  if  the  testator  had  made  a 
specific  bequest  of  his  bonds  and  stocks  in  trust  to  be  dis- 
tributed among  his  legatees.  But  the  decisive  answer  to 
this  view  of  the  case  is,  that  the  bequest  of  the  entire  corpus 
of  an  estate,  or  residue  of  an  estate,  is  never  deemed  a 
specific  legacy  of  the  whole,  or  of  any  portion,  of  the  property 
included  in  the  bequest. 

There  are  two  other  clauses  in  the  will,  which  are  relied 
on  as  indicating  an  intention  on  the  part  of  the  testator  Lo 
make  the  legacies  to  the  complainants  specific. 

By  the  first  of  these  clauses,  the  testator  directs  that  from 
the  income  of  the  residue  of  his  estate,  there  shall  be  paid 
an  annual  sum  of  ^10,000  to  his  wife;  and  by  the  second,  he 
further  directs  that  if  the  income  from  his  estate,  after  the 
payment  of  the  bequests  before  made  (including  the  bequests 
to  the  complainants),  shall  exceed  the  sum  of  $10,000  a  year, 


224  CASES  IN  CHANCERY. 

Young's  adru'r  v.  Kathbone. 

the  surplus  should  be  invested,  &c.  It  is  argued  that  these 
clauses  do  not  include  the  income  of  the  legacies  in  question, 
and  if  the  income  does  not  pass  to  the  respective  legatees, 
with  the  principal,  then  as  to  such  income  the  testator  died 
intestate.  But  if  it  be  admitted  that  this  is  the  strict  literal 
import  of  the  language  used,  yet  it  cannot  I  think  be  ques- 
tioned, that  using  the  term  "residue"  in  its  ordinary  and 
natural  sense,  the  language  is  equally  appropriate,  and  would 
have  been  used  by  the  testator,  whether  the  previous  legacies 
were  general  or  specific.  They  are  at  the  utmost  of  doubtful 
import,  and  cannot  serve  to  indicate  a  "  clear  intention  "  on 
the  part  of  the  testator  to  make  the  legacies  specific. 

If  these  legatees  were  now  before  the  court  claiming  the 
payment  of  these  legacies,  and  it  should  be  made  to  appear 
that  all  the  shares  of  stock,  and  all  the  bonds,  of  the  kinds 
bequeathed,  had  been  sold  by  the  testator  in  his  lifetime,  I 
think  it  never  could  be  held,  under  the  terms  of  the  will, 
that  it  was  the  intention  of  the  testator  that  those  legacies 
to  his  nearest  relatives  and  chosen  friends  should  be  extin- 
guished, and  the  favorite  objects  of  his  bounty  deprived  of 
all  benefit  under  the  will.  And  yet  this  must  have  been  the 
result  if  these  legacies  are  specific.  The  character  and  inci- 
dents of  the  gift  are  fixed  by  the  terms  of  the  bequest,  and 
cannot  depend  upon  the  effects  which  may  result,  whether 
beneficial  or  prejudicial  to  the  interests  of  the  legatee. 

The  legacies  to  the  complainants  are  not  specific,  and  the 
legatees,  consequently,  are  not  entitled  to  the  accrued  and 
accruing  dividends  and  income  thereon. 

Eeversed,  1  C.  E.  Qr.  542.    See  2  McCar.  493. 


Administrator  of  Catharine  C.  Young  vs.  Aaron  H. 
Rathbone. 

1.  A  court  of  equity  ought  not  to  enforce  the  specific  performance  of  a 
contract  for  the  purchase  of  land,  under  a  sale  which  a  competent  tribunal . 
had  pronounced  unauthorized  and  illegal. 

2.  The  judgment  or  decree  of  a  court  of  general  jurisdiction,  upon  a 


MAY  TERM,  1863.  225 

Young's  adm'r  v.  Rathbone. 

subject   matter   wiihin  its  jurisdiction,  is  final  and  conclusive,  and  can 
never  be  questioned  in  a  collateral  fuit. 

3.  But  where  the  order  or  decree  is  not  an  error  of  judgment,  but  an 
usurpation  of  power,  it  is  not  conclusive,  and  may  be  drawn  in  question  in 
a  collateral  proceeding. 

4.  A  court  of  equity,  in  the  exercise  of  its  discretion,  will  not  compel  a 
purchaser  to  accept  a  title  depending  upon  an  illegal  and  invalid  sale, 
■while  it  remains  open  to  review,  although  the  judgment  unreversed  might 
be  conclusive  upon  the  party's  rights. 

5.  Time  is  not  generally  deemed  in  equity  to  be  of  the  essence  of  the 
contract,  unless  the  parties  have  expressly  so  treated  it,  or  it  necessarily 
follows  from  the  nature  and  circumstances  of  the  contract.  Specific  per- 
formance is  frequently  decreed,  where  the  terms  for  the  completion  of  the 
contract  have  not,  in  point  of  time,  been  strictly  complied  with. 

6.  Where  the  time  fixed  for  the  delivery  of  a  deed  has  passed  and  cir- 
cumstances have  materially  changed,  a  vendee  acting  in  good  faith  will 
not  be  compelled  to  accept  a  deed  against  his  will,  which  he  was  ready  and 
willing  to  accept  at  the  time  fixed  for  the  performance  of  the  contract. 


Oji  final  liearing. 

Zabj'iskie,  for  complainant. 

Ransom  and  Scofield,  for  defendant. 

Cases  cited  by  complainant's  counsel.  Kempe^s  Lessee  v. 
Kennedy,  5  Crunch  173,186;  Ex  parte  Wathins,  3  Peters 
193,  202;  Voorhees  v.  Bank  of  United  States,  10  Peters 
449,  472  ;  Harfshorne  v.  Johnson,  2  Halst.  R.  108  ;  Den  v. 
Zellers,  Ibid.  153;  Den  v.  O'Hanlon,  1  Zab.  582:  Den  v. 
Gaston,  4  Ibid.  818,820;  Den  v.  Hammel,  '3  Harr.lii; 
Diehl  V.  Page,  2  Green\  Ch.  R.  143  ;  Pittenger  v.  Pittenger^ 
Ibid.  156,  166;  Stokes  v.  Middleton,  4  Dutcher  32,  35;  Run- 
yon  V.  India  Rubber  Co.,  4  Zab.  473,  476 ;  Stevens  v.  Endess, 
1  Greenes  R.  Ill,  reviewed. 

Cases  cited  by  defendant's  counsel.  Stevens  v.  Enders,  1 
Green's  R.  271  ;  Van  Riper  v.  Berdan,  2  Green's  R.  139; 
State  V.  Rickey,  3  Halst.  R.  50. 


226  CASES   IN  CHANCERY. 

Young's  adm'r  v.  Rathbone. 

The  Chancellor.  The  bill  is  filed  to  enforce  the  specific 
performance  of  a  contract  for  the  sale  of  certain  real  estate 
made  by  the  complainant,  as  administrator  with  the  will  an- 
nexed, and  trustee  of  the  estate  of  Catharine  C.  Young,  de- 
ceased, to  the  defendant.  The  sale  was  made  on  the  twenty- 
second  of  September,  1860.  By  the  conditions  of  sale  the 
deed  was  to  have  been  deUvered  on  the  first  Monday  of  De- 
cember following.  The  defendant  declined  to  accept  the 
deed,  and  now  resists  a  decree  for  specific  peformance  on 
the  ground  of  defective  title. 

Catharine  C.  Young,  the  complainant's  testatrix,  claimed 
title  to  the  premises  under  a  deed  made  by  commissioners 
appointed  by  the  Court  of  Common  Pleas  of  the  county  of  Ber- 
gen, upon  an  application  for  the  partition  of  certain  real  estate 
wherereof  Thomas  Stevenson  died  seized,  among  his  devisees, 
under  the  act  of  1789.  Three  of  the  tenants  in  common 
held  their  shares  in  fee.  Two  of  them  were  tenants  for  life 
only,  with  remainder  over  to  their  children.  The  proceed- 
ings were  in  the  name  of  those  only  having  estates  in  pos- 
session. The  tenants  in  remainder  were  not,  and  could  not, 
be  made  parties  to  the  proceedings. 

In  Stevens  v.  JEnders,  1  Green  271  it  was  decided  by  the 
Supreme  Court  of  this  state,  that  on  application  for  partition, 
where  there  were  persons  owning  estates  in  remainder  who 
could  not  be  made  parties  to  the  suit,  the  court  have  no  au- 
thority, under  the  act  of  1789,  to  make  an  order  for  sale,  or 
to  approve  and  confirm  it.  The  case  falls  directly  within 
the  authority  of  that  adjudication,  and  it  is  admitted  that  if 
that  decision  be  law,  the  sale  in  this  case  was  unauthorized 
and  illegal.  But  it  is  insisted  that  the  decision  in  that  case 
is  not  law.  If  any  doubt  ever  existed  in  regard  to  the  pro- 
priety of  that  decision,  it  ought  not  to  be  questioned  at  this 
time  and  in  this  cause.  It  was  the  recognized  law  of  the 
state  for  nearly  thirty  years.  It  was  the  unanimous  judg- 
ment of  the  court,  and  has  never  before,  so  far  as  I  am 
aware,  been  drawn  in  question.  Its  operation  has  been  ter- 
minated by  express  legislation.      A  court  of  equity  ought 


MAY  TERM,  1863.  227 

Young's  adiii'r  v.  Rathbone. 

not  to  enforce  the  specific  performance  of  a  contract  for  the 
purchase  of  lands  under  a  sale  which  the  Supreme  Court  had 
pronounced  unauthorized  and  illegaj. 

It  is  further  insisted  that  if  the  decision  in  Stevens  v. 
Eaders  is  recognized  as  law,  and  if  the  sale  was  unauthorized 
and  illegal,  yet  the  order  confirming  the  sale,  having  been 
made  by  a  court  of  general  jurisdiction  upon  a  subject  matter 
withiu  its  jurisdiction,  is  final  and  conclusive  and  can  never 
be  questioned  in  a  collateral  suit. 

The  soundness  of  this  general  proposition  cannot  be  ques- 
tioned. It  has  been  established  by  the  uniform  current  of  au- 
thority both  in  the  Sujireme  Court  of  tlie  United  States  and 
of  this  state.  Kemp's  Lessee  v.  Kennedy,  5  Cranch  173  ;  Ex 
parte  WatJdns,  3  Peters  193  ;  Voorhces  v.  Btink  of  U.  S.,  10 
Peters  449,  472  ;  Hartshorne  v.  Johnson,  2  Hiilst.  108  ;  Den 
V.  O'Hanlon,  1  Zab.  582;  Den  v.  Gadon,  4  Zab.  818,  820; 
Stokes  V.  3Iiddleion,  4  Didcher,  32,  35  ;  Pittcngcr's  Adm'r 
V.  Pltlenger,  2  Green's  Ch.  R.  156. 

It  is  urged  that  the  present  case  falls  directly  within  the 
operation  of  this  princi[)le,  inasmuch  as  the  court  had  juris- 
diction of  the  matter  of  partition.  And  it  is  admitted  by 
the  Chief  Justice  in  Stevens  v.  Enders,  that  a  partition 
might  be  made  as  between  the  tenants  in  fee  and  tenants  for 
life  who  had  present  interests  in  the  land.  But  the  fallacy 
of  the  argument  consists  in  this,  that,  although  the  court  had 
jurisdiction  over  the  partition,  they  had  none  over  the  sale. 
If  they  had  power  to  direct  a  partition,  they  had  no  power 
to  order  a  sale,  or  to  affect  the  interests  of  the  persons  having 
estates  in  remainder.  The  order  for  sale  was  not  an  error 
of  judgment,  but  an  usurpation  of  power.  The  order  of  the 
court  was  therefore  not  conclusive  U[)on  the  validity  of  the 
Bale,  which  may  be  drawu  in  question  in  a  collateral  pro- 
ceeding. 

But  if,  in  point  of  fact,  the  court  had  jurisdiction,  and  its 
judgment  cannot  collaterally  be  drawn  in  question,  it  may 
still  remain  a  matter  of  doubt  whether  a  court  of  equity 
would  have  enforced  the   contract  as  against  a  puichuser,  as 


228  CASES  IN  CHANCERY. 

Young's  adm'r  v.  Ratlibone. 

the  law  stood  at  the  elate  of  this  coutract.  It  was  held  by 
the  Supreme  Court  in  Stevens  v.  Enders,  that  a  certiorari  for 
the  removal  of  proceedings  upon  an  ap[)lication  for  partition 
and  order  for  sale,  is  not  within  the  provision  of  the  statute 
which  prohibits  the  allowance  of  a  certiorari  after  the  lapse 
of  eighteen  months  from  the  date  of  the  order.  Its  allow- 
ance in  such  case  rests  in  the  sound  discretion  of  the  court. 
And  where  the  rights,  of  a  married  woman  or  of  infant 
children  are  involved,  what  limit  would  a  court  of  law  set  to 
the  exercise  of  that  discretion  ?  It  might  not  be  safe  to 
assume  that  any  time  short  of  the  actual  removal  of  the 
legal  disability  would  constitute  that  limit.  Nor  would  a 
court  of  equity,  in  the  exercise  of  its  discretion,  con)[)el  a 
purchaser  to  accept  a  title  depending  upon  an  illegal  and 
invalid  sale,  while  it  remained  open  to  review  at  the  dis- 
cretion of  a  court  of  law,  although  the  judgment  unreversed 
might  be  conclusive  upon  the  party's  rights. 

The  act  of  the  fourteenth  of  March,  1861,  operated  to  heal 
the  defects  in  the  title  under  the  commissioners'  sale.  On 
the  fifteenth  of  June  thereafter,  a  conveyance  was  again  ten- 
dered to  the  defendant,  which  he  refused  to  accept.  Time 
is  not  generally  deemed  in  equity  to  be  of  the  essence  of  the 
contract,  unless  the  parties  have  expressly  so  treated  it,  or 
it  necessarily  follows  from  the  nature  and  circumstances  of 
the  contract.  Specific  performance  is  therefore  frequently 
decreed,  where  the  terms  for  the  completion  of  the  contract 
have  not,  in  point  of  time,  been  strictly  complied  with.  1 
Story's  Eq.  Jur.,  §  776  ;.  Fry  on  Spec.  Perf.  314. 

But  in  this  case,  between  the  time  fixed  for  the  delivery 
of  the  conveyance  in  December,  1860,  and  the  subsequent 
tender  of  the  deed  after  the  title  had  been  perfected,  circum- 
stances had  materially  changed.  A  civil  war  had  broken 
out,  and  the  value  of  real  estate  was  depressed.  It  could 
not  be  consistent  with  the  real  intention  of  the  parties,  or 
with  the  real  justice  of  the  case,  to  compel  the  vendee,  under 
such  circumstances  acting  in  good  faith,  to  accept  a  deed 
against  his  will,  which   he  was  ready  and  willing  to  accept 


MAY  TERM,  1863.  229 

Stratton  v,  Allen. 

at  the  time  fixed  for  performance.  I  do  not  indeed  under- 
stand the  counsel  of  the  compUiinant  to  phice  his  case  at  all 
upon  this  ground,  but  to  rest  exclusively  on  the  position  that 
the  act  of  the  fourteenth  of  March,  18G1,  was  but  an  affirm- 
ance of  the  law  as  it  previously  stood,  and  that  the  title  was 
consequently  perfect  at  the  time  of  the  tender  of  the  deed. 

Failing  in   this  position,  he  is  not  entitled  to  relief.     The 
bill  must  be  dismissed  with  costs. 

Cited  in  Merrilt  v.  Brown,  4  C  E.  Or.  293  ;  King  v.  Riickman,  5  C.  E, 
Gr.  354;  Bullock  y.  Adams,  Id.  372;  Grigg  v.  Landis,  G  C.  E.  Gr 
603. 


Charles  P.  Stp.atton,  Receiver  of  "  The  Camden  Iron 
ManufacturiLg  Company,"  vs.  IIexry  Allen. 

1.  Objections  relating  to  the  reguJarity  of  a  judgment  at  law,  or  to  the 
validity  of  the  instrument  upon  which  it  is  founded,  constitute  no  ground 
for  the  interference  of  equity. 

2.  If  the  instrument  upon  whicli  tlie  judgment  was  entered,  was  without 
consideration  or  invalid,  or  if  the  judgment  was  unauthorized  or  illegal, 
the  remedy  for  a  party  aggrieved  is  by  application  to  the  court  in  which 
it  was  entered,  or  by  writ  of  error, 

3.  A  judgment  can  only  be  impeached  in  a  court  of  equity  for  fraud  in 
its  concoction,  and  not  for  fraud  in  the  instrument  upon  which  it  ia 
founded. 

4.  A  member  or  director  of  a  corporation  may  make  contracts  with  it, 
like  any  other  individual,  and  when  the  contract  is  made,  the  director 
Btands,  as  to  the  contract,  in  the  relation  of  a  stranger  to  the  corporation. 

5.  Corporations  that  have  the  power  to  borrow  money,  have  also  the 
necessary  power,  as  well  as  the  legal  right,  to  give  obligations  for  its  re- 
payment in  any  form  not  expressly  forbidden  by  law.  Tiie  fact  that  the 
security  was  given,  and  the  judgment  confessed  to  a  director,  cannot  de- 
stroy its  validity. 

6.  A  judgment  confessed  by  a  party  on  the  eve  of  insolvency,  without 
any  view  or  expectation  of  obtaining  aid  to  enable  him  to  continue  hia 
business,  affords  strong  evidence  that  it  was  done  in  contemplation  of  in- 
Bolvency,  and  with  the  view  of  preferring  creditors. 

7.  In  the  distribution  of  the  funds  of  an  insolvent  company,  a  judgment 


230  CASES  IN  CHANCERY. 

Stratton  v.  Allen. 

confessed  in  contemplation  of  insolvency',  and  with  the  view  of  preferring 
creditors,  is  entitled  to  no  priority.  The  debt  will  be  paid  proporlionably 
with  the  other  debts  of  the  company. 


Wilson  and  Carpenter,  for  complainant. 

Dayton  and  Browning,  for  defendant. 

Cases  cited  by  complainant's  connsel.  Rawnsley  v.  Tren- 
ton Mut.  Life  and  Fire  Ins.  Co.,  1  Stoold.  3-17 ;  Holcornb\s 
Ex'rs  V.  Bridge  Co.,  Ibid.  457  ;  2  Green's  Ch.  R.  266  ;  Nix. 
Dig.  371,  §  2;  Angell  &  Ames  on  Corp.,  §  600;  Wood  v. 
Diimmer,  3  Mason  308  ;  Lewin  on  Trusts  460-61  :  Ex  parte 
James,  8  Vesey  348 ;  Cumberland  Coal  and  Iron  Co.  v. 
Slierman,  8  Law  Reg.  333,  [April,  1860). 

Cases  cited   by   defendant's  counsel.       Wiggins    v.   Ainn- 
strong,  2  Johns.  Ch.  R.  144: ;    Wintringham  v.   Wintringham, 
20  Johns.  R.  296 ;  Brinkerhoff  v.  Broicn,   4  Johns.  Ch.  R. 
671 ;    Williams  v.  Broion,  Ibid.  682  ;  MeDermxdt  v.  Strong, 
Ibid.  687;   Cooper's   Eq.   PL   149;  Mitford's   Eq.  FL  115  ; 
Hunt  V.  Field,  1   StocJct.  36 ;    Williams  v.  Michenor,  3  i6/(i. 
524;   2  *Stoys  ^g.  Jwr.,  §    1575;   3   Jo/m,9.  CA.  i^.  275;   4 
J6ic/.  85  ;   5  Ibid.  555  ;   6  Ibid.  235  ;   20  JoAn.s.  R.   668 
JJoyi  V.  iyo?/^,  1  Harr.  138  ;  Angell  &  Ames  on  Corp.,  §  233 
Rogers  v.    2^/ie   Danhy     Universalist   Society,    19    F/!.    191 
/Saz^ycT  V.  The  31  E.  Soc,  18  Vt.  409  ;  6  Vt.  76. 

The  Chancellor.  On  the  eleventh  of  April,  1860, "  The 
Camden  Iron  Manufacturing  Company "  executed,  under 
their  co-rporate  seal  and  the  signature  of  their  president,  to 
Henry  Allen,  then  being  a  director  of  said  company,  two 
bonds,  with  warrants  of  attorney  to  confess  judgments  thereon  ; 
one  for  $2399.75,  payable  on  the  day  of  its  date,  the  other 
for  $10,000,  payable  in  five  days  thereafter.  Judgment  in 
the  Camden  Circuit  Court  was  entered  upon  the  one  bond 
on  the  fourteenth  of  April,  and  upon  the  other  on  the  fifth 


MAY  TERM,  1863.  231 

Stratton  v.  Allen. 

of  August,  1860.  Ou  the  twenty-fifth  of  September,  1860, 
a  bill  ^vas  filed  to  have  the  corporation  declared  insolvent, 
and  on  the  twentieth  of  October,  a  receiver  was  appointed. 
The  assets  are  insufficient  to  satisfy  the  debts  of  the  company. 
This  bill  is  filed  by  the  receiver  to  set  aside  the  judgments 
in  favor  of  Allen,  as  fraudulent  and  void,  or  to  establish  the 
right  of  the  other  creditors  to  share  ratably  in  the  distribu- 
tion of  the  funds.  The  principal  objections  urged  against 
the  validity  of  the  judgments,  are — 

1.  That  the  affidavit  upon  which  the  judgments  were  en- 
tered, was  insufficient. 

2.  That  the  board  of  directors,  by  whom  the  order  was 
made  for  the  execution  of  the  bonds  and  warrants,  was  not 
duly  organized  ;  a  quorum  not  being  present. 

3.  That  Allen,  as  a  director,  could  not  legally  vote  in  favor 
of  an  order  to  execute  the  bonds  to  himself. 

4.  That  the  order  of  the  directors  authorizes  the  execution 
of  a  bond  only,  and  confers  no  authority  to  execute  a  warrant 
of  attorney. 

5.  That  the  bonds  and  warrants  are  not  countersigned  by 
the  secretary,  as  required  by  the  by-laws  of  the  company. 

6.  That  the  judgments  are  fraudulent  as  against  creditors, 
because  they  were  given  to  a  director  of  the  company, 
whereby  he  obtains  wrongfully  a  preference  over  other  cred- 
itors equally  meritorious. 

7.  That  the  judgments  were  confessed  to  Allen  when  the 
company  was  insolvent,  or  in  contemplation  of  insolvency, 
for  the  purpose  of  giving  him  preference  over  other  creditors. 

So  far  as  these  objections  relate  to  the  regularity  of  the 
judgments,  or  to  the  validity  of  the  instruments  upon  which 
they  are  founded,  they  constitute  no  ground  for  the  inter- 
ference of  this  court.  The  defendant  is  in  possession  of  the 
judgments  of  a  court  of  common  law,  having  jurisdiction  of 
the  subject  matter.  If  the  instruments  upon  which  those 
judgments  were  entered,  were  without  consideration  or  in- 
valid, or  if  the  judgments  themselves  are  unauthorized  or 
illegal,  the  remedy  for  a  party  aggrieved   would  be  by  ap- 


232  CASES  IN  CHANCERY. 

Stratton  v.  Allen. 

plication  to  the  court  in  which  the  judgment  is  entered,  or 
by  writ  of  error.  They  are  questions  exclusively  for  the 
cognizance  of  those  courts.  It  seems  to  be  conclusively  set- 
tled that  a  judgment  can  only  be  impeached  in  a  court  of 
equity  for  fraud  in  its  concoction.  2  Stori/s  Eq.,  §  1575  ; 
Shottenkirh  v.  Wheeler,  3  Johns.  Ch.  R.  275  ;  DeRlenier  v. 
DeCanlillion,  4  M>id.  85;  French  v.  Sholwcll,  6  Ibid.  235. 

Whether  the  judgments  are  irregular  or  erroneous,  are  ex- 
clusively questions  of  law.  So  long  as  they  remain  in  force, 
they  must  be  received  in  this  court  as  valid.  It  was  s'jggested 
upon  the  argument  that  this  court  would  at  least  give  to  the 
complainant  an  opportunity  of  having  these  questions  tested 
at  law.  This  course  the  complainant  may  adopt  of  his  own 
volition,  without  the  assent  or  direction  of  equity.  And  if 
the  judgments  are  opened  or  reversed  at  law,  he  will  not  re- 
quire the  further  aid  or  direction  of  this  court.    , 

The  only  ground  upon  which  equity  can  interfere  by 
avoiding  the  judgments  is,  that  the  judgments  are  fraudulent 
as  against  the  creditors  of  the  corporation. 

The  alleged  ground  of  fraud  is,  that  the  company  being 
insolvent,  the  judgments  were  confessed  to  a  director  of  the 
company  for  the  purpose  of  giving  him  preference  over  other 
creditors  having  equally  meritorious  claims. 

In  considering  this  question,  it  will  be  assumed  that  the 
entire  sum  for  which  the  judgments  were  confessed,  was  due 
from  the  corporation,  and  that  there  was  no  actual  fraud  in 
the  transaction. 

The  mere  fact  that  the  creditor  was  a  director  of  the  com- 
pany, does  not  render  the  transaction  fraudulent.  There  is 
nothing  which  forbids  either  the  members  or  directors  of  a 
corporation  to  make  contracts  with  it,  like  any  other  indi- 
vidual ;  and  when  the  contract  is  made,  the  director  stands, 
as  to  the  contract,  in  the  relation  of  a  stranger  to  the  corpo- 
ration. The  Pres't,  M.  &  Co.  of  the  B.  &  D.  Turnpike  Road 
V.  Myers,  G  Serg.  &  R.  12  ;  Gordon  v.  Preston,  1  Watts  385; 
Central  Railroad  v.  Claghorn,  1  Speer^s  Eq.  R.  545  ;  Angell 
&  Ames  on  Corp.,  §  233 


MAY  TERM,  1863.  233 

Stratton  v.  Allen. 

And  corporations  that  have  the  power  to  borrow  money, 
have  also  the  necessary  power,  as  well  as  the  legal  right,  to 
give  obligations  for  its  repayment,  in  any  form  not  expressly 
forbidden  by  law.      Cai^tis  v.  Leavilt,  1  Smith  9. 

The  mere  fact,  therefore,  that  the  security  was  given  and 
the  judgments  confessed  to  a  director,  cannot  destroy  its  va- 
lidity. Nor  can  it  be  denied  that  a  corporation,  as  well  as  an 
individual,  may,  independently  of  the  statute,  confess  judg- 
ments in  order  to  jn-efer  creditors. 

The  objection  results  from  the  provisions  of  the  statute. 
It  is  obvious  that  the  policy  of  the  statute  for  the  preventiou 
of  frauds  by  incorporated  companies,  Nix.  Dig.  371,  is  (o 
preserve  the  entire  property  of  an  insolvent  debtor  for  equal 
distribution  among  all  its  creditors.  It  declares  all  transfers 
of  property  made  after  insolvency,  or  in  contemplation  of 
insolvency,  null  and  void  as  against  creditors.  It  requires 
that  in  the  payment  of  creditors  and  distribution  of  the  funds 
of  an  insolvent  corporation,  the  creditors  shall  be  paid  in  pro- 
portion to  the  amount  of  their  respective  debts,  excepting 
mortgage  and  judgment  creditors,  when  the  judgment  has  not 
been  by  confession  for  the  purpose  of  preferriug  creditors.  Its 
obvious  requirement  is,  that  where  the  judgment  is  confessed 
for  the  purpose  of  ])referring  creditors,  the  claim  shall  have 
no  priority  over  other  debts. 

There  is  little  controversy  as  to  the  facts  of  the  case.  The 
bill  charges  that  at  the  time  the  bonds  and  warrants  v/ere 
executed,  the  company  was  insolvent,  or  on  the  eve  of  be- 
coming so  ;  and  that  its  condition  was  well  known  to  the 
officers  of  the  company,  and  particularly  to  Allen,  who  was 
a  director  and  the  secretary  of  the  company  ;  and  that  the 
bonds  and  warrants  were  executed  with  the  view  of  giving 
Allen  a  preference  over  other  creditors.  The  answer  does 
not  deny  that  the  company  was  insolvent,  nor  ihe  defend- 
ant's knowledge  of  that  fact,  nor  that  the  judgments  were 
confessed  for  the  purpose  of  giving  him  a  preference  over 
other  creditors.  The  answer  alleges  that  the  defendant 
made  loans  and  advances  to  the  company,  not  knowing  or 


231  CASES  IN  CHANCERY. 


Stratton  v.  Allen. 


believing  that  ihey  were  on  the  eve  of  bankiuptcy.  But  tlie 
advances  and  liabilities  for  which  the  judgments  were  con- 
fessed, were  made  and  assumed  long  before  the  confession  of 
the  judgments,  or  the  giving  of  the  bonds  and  warrants.  Not 
a  dollar  was  advanced,  nor  a  liability  assumed  at  the  time. 
Previous  to  that  time  he  had  made  large  advances  to  enable 
the  company  to  carry  on  its  oi)erations,  but  no  advances 
whatever  appear  to  have  been  subsequently  made.  From 
Allen's  position  as  director  and  secretary  of  the  company,  he 
must  have  been  fully  acquainted  with  its  financial  condition 
and  operations.  The  testimony  of  the  president  shows  that 
at  the  time  the  securities  to  Allen  were  authorized,  he  be- 
lieved that  the  Price  mortgage  would  be  foreclosed,  and  in 
that  event  the  company  could  not  continue  its  operations 
without  further  aid  from  Allen.  The  foreclosure  was  com- 
menced, and  no  further  aid  was  furnished  by  Allen.  The 
company,  in  fact,  suspended  its  business  about  the  first  of 
July.  It  is  apparent  that  the  officers  of  the  company  acted 
from  no  hope  or  belief  that  they  could  carry  on  its  business, 
or  redeem  it  from  insolvency.  They  expected  to  stop  pay- 
ment, and  the  security  to  Allen  was  given  in  anticipation  of 
that  event.  The  confession  of  the  judgments  could  only 
embarrass  their  operations,  without  aiding  them.  They 
obtained  by  it  no  aid  in  continuing  their  business.  No 
additional  funds  were  procured,  no  extension  of  credit  ob- 
tained. A  judgment  confessed  under  such  circumstances  af- 
fords the  strongest  evidence  that  it  was  done  in  contemplation 
of  insolvency,  and  with  the  view  of  preferring  creditors. 
Everett  v.  Stone,  3  Story  453  ;  Arnold  v.  Maynard,  2  Story 
354  ;  Oariis  v.  Leavitt,  1  Smith  111;  Freeman  v.  Deming,  3 
Sandf.  Ch.  R.  332. 

I  think  the  facts  are  satisfactorily  established,  that  at  the 
time  of  the  execution  of  the  bonds  and  warrants,  upon  which 
the  judgments  are  confessed,  the  company  was  insolvent,  or 
on  the  eve  of  insolvency;  that  its  financial  condition  was 
well  known  to  Allen,  who  was  a  director  and  the  secretary 
of  the  company;  and  that  the  judgments  were  confessed  in 


MAY  TERM,  1863.  235 

Stratton  v.  Allen. 

contemplation  of  insolvency,  for  the  purpose  of  preferring 
Allen  over  other  creditors.  The  simple  question  is,  whether, 
in  payment  of  the  creditors  and  in  the  distribution  of  the 
funds  of  the  company,  the  judgment  thus  confessed  is  enti- 
tled to  priority  in  payment  over  other  claims  against  the 
company,  or  whether  the  debts  are  all  to  be  paid  propor- 
tionably.  The  statute  does  not  declare  the  judgment  void. 
It  is  not  within  the  prohibition  of  the  second  section,  and 
the  fifteenth  section  simply  regulates  the  distribution  of  the 
funds,  and  the  mode  in  which  the  debts  shall  be  satisfied. 
The  resolution,  under  which  the  bonds  and  warrants  were 
given,  does  not  authorize  the  confession  of  a  judgment,  or  the 
execution  of  a  warrant  for  that  purpose.  It  directs  that  the 
sum  of  $10,000  shall  be  secured  by  bond  and  mortgage,  and 
authorizes  the  president  to  prepare  an  inventory  of  the  tools 
and  fixtures,  to  be  given  with  the  mortgage.  If  such  secu- 
rity had  been  given  by  the  company  when  insolvent,  or  in 
contemplation  of  insolvency,  it  seems  clear  that  the  mort- 
gage would,  under  the  provisions  of  the  second  section  of  the 
act,  have  been  void  as  against  creditors.  It  seems  equally 
clear,  under  the  provision  of  the  ninth  section  of  the  act, 
that  a  judgment  confessed  under  like  circumstances  can 
be  entitled  to  no  priority  over  other  claims  in  the  distribu- 
tion of  the  funds.  It  is  difficult  to  imagine  what  operation 
can  be  given  to  the  ninth  section  of  the  act,  if  it  cannot  be 
applied  for  the  protection  of  creditors  in  a  case  like  the 
present,  where  the  evidence  of  the  insolvency  of  the  company, 
and  the  purpose  of  confessing  the  judgment,  is  so  strong,  and 
where  the  creditor,  in  whose  favor  the  judgment  is  confessed, 
is  an  officer  of  the  corporation,  fully  acquainted  with  its  finan- 
cial condition.  It  was  earnestly  insisted  upon  the  argument, 
that  Allen,  being  a  director  of  the  company,  and  in  case  of 
its  insolvency,  a  trustee  of  the  property  for  the  benefit  of  its 
creditors,  was  disabled  in  equity  from  acquiring  priority 
over  other  creditors  by  taking  a  judgment  in  his  own  favor. 
That  his  conduct  in  taking  the  judgment  was  not  only  in 
violation  of  the  policy  of  the  statute,  but  was  an  abuse  of  his 


236  CASES  IN  CHANCERY. 

Frey  v.  Demarest  et  al. 

official  character  as  trustee,  which  rendered  the  judgment  in 
his  favor,  fraudulent  and  void  as  against  creditors.  I  deem 
it  unnecessary  to  express  any  o[)inion  upon  this  point.  It  is 
clear  from  the  evidence,  that  the  debt  for  which  the  judg- 
ment is  confessed,  was  honestly  due,  and  the  ends  of  justice 
will  be  fully  answered  by  declaring  that  in  the  distribution 
of  the  funds  of  the  corporation,  the  judgment  shall  be  paid 
proportionably  with  the  other  debts.  Nothing  could  be 
gained  by  declaring  the  judgment  void,  and  compelling  the 
defendant  to  prove  his  claim  before  the  receiver. 


Elza  Ann  Feey  vs.  Garret  I.  Demaeest  and  others. 

1.  A  bill  in  equity  by  the  next  of  kin,  for  the  distributive  share  of  an 
estate  in  the  hands  of  an  administrator,  will  be  sustained,  where  no  decree 
for  distribution  has  been  made. 

2.  The  statutory  remedy  by  suit  at  law  for  the  recovery  of  a  legacy  or 
a  distributive  share  of  an  estate  is  cumulative,  and  was  not  designed  to  limit 
or  qualify  the  ancient  jurisdiction  of  the  court  of  equity  over  the  subject. 

3.  The  Court  of  Chancery  is  not  deprived  of  its  original  jurisdiction  in 
any  case,  either  by  the  operation  of  a  statute  conferring  similar  jurisdic- 
tion upon  the  common  law  courts,  or  by  the  adoption  in  those  courts  of  the 
principles  or  practice  of  courts  of  equity. 

4.  The  court  of  equity  has  concurrent  jurisdiction  with  the  Prerogative 
Court  over  the  administration  of  the  assets  of  deceased  persons. 

5.  Unless  for  some  special  cause,  a  court  of  equity  will  not  interfere 
■with  the  ordinary  jurisdiction  of  the  Orphans  Court  in  the  settlement  of 
the  accounts  of  execiitors  or  administrators.  Nor  will  it  attempt  to  look 
behind  such  settlement,  unless  on  the  ground  of  fraud  or  mistake. 

6.  The  retention  by  an  administrator  of  the  fund  in  his  hands,  mingled 
with  his  own  funds  and  used  for  his  own  profit,  will  entitle  the  party  bene- 
ficially interested  in  the  fund  to  a  discovery  and  an  account,  and  to  such 
decree  as  may  be  necessary  to  maintain  and  enforce  the  complainant's 
rights. 

C  H.  Voorhis,  for  Demarest,  in  support  of  the  demurrer. 
Slaight,  for  complainant,  contra. 


MAY  TERM,  1863.  237 


Frev  V.  Deraarest  et  al. 


The  Chancellor.  The  bill  charges  that  Henry  Frey 
died  intestate,  on  the  twenty-eighth  of  June,  1839,  seized  and 
possessed  of  considerable  personal  and  real  estate.  On  the 
seventeenth  of  September,  1839,  letters  of  administration 
were  granted  to  the  defendants,  who  converted  the  personal 
])roperty  into  cash  and  sold  the  real  estate,  by  order  of  the 
Orplians  Court,  for  the  payment  of  debts.  On  the  twenty- 
fourth  of  Sei)teniber,  1840,  Demarest,  one  of  the  adminis- 
trators, presented  his  separate  account  of  the  personal,  and 
of  the  proceeds  of  the  sale  of  the  real  estate,  to  the  Orphans 
Court  for  settlement.  The  account  was  allowed  and  settled, 
leaving  in  his  hands  at  that  time  a  balance  of  $280.37,  to 
which  the  com[)lainant  claims  title.  The  complainant  came 
of  age  in  December,  1859,  having  been,  on  the  death  of  her 
father,  an  infant  about  six  months  old.  The  defendant,  Dem- 
arest, at  the  time  of  the  settlement  of  his  account,  was  aware 
of  the  complainant's  rights,  but  has  never  paid  over  the  bal- 
ance in  his  hands,  nor  any  part  of  it,  but  has  mingled  it 
with  his  own  funds,  and  has  used  and  applied  it  in  his  busi- 
ness for  his  own  benefit,  for  more  than  twenty-one  years  last 
past,  and  so  continues  to  use  it,  and  has  refused  and  still 
refuses  to  account  to  the  complainant.  The  bill  ])rays  an 
account,  and  a  decree  for  the  balance  of  the  estate  in  the 
hands  of  the  defendants,  wi-th  interest. 

To  this  bill,  Demarest,  one  of  the  defendants,  demurs.  The 
only  question  presented  by  the  demurrer  is,  whether  the  bill 
contains  any  equity.  The  demurrer  is  general,  and  is  di- 
rected to  the  whole  bill.  No  objection,  therefore,  to  the  foi'ni 
or  structure  of  the  bill,  or  to  defectfve  averments  therein, 
if  such  there  be,  or  to  a  defect  of  equity  in  particular  parts  of 
the  bill  can  avail  the  defendant.  Story's  Eq.  PL,  §  442,  § 
443,  §  453,  §  528. 

It  appears  by  the  bill  that  the  account  of  one  of  the  ad- 
ministrators was  settled  in  the  Orphans  Court,  and  that 
there  has  been  no  decree  for  distribution.  It  is  urged  in 
support  of  the  demurrer,  that  a  bill  in  equity  cannot  be  sus- 
tained by  the  next  of  kin  for  the  recovery  of  the  funds  in  the 

Vol.  I.  p 


238  CASES  IN  CHANCERY. 

Frey  v.  Demarest  et  al. 

hands  of  the  administrator,  prior  to  a  decree  for  distribution. 
Such  is  und()ul)tedly  the  rule  at  law.  Ordinary  v.  The 
jEx'rs  of  Smith,  3  Green's  R.  92,  97. 

The  remedy  by  suit  at  law,  for  the  recovery  of  a  legacy  or 
a  distributive  share  of  an  estate,  is  of  statutory  origin  and  is 
regulated  by  the  provisions  of  the  statute.  The  statute  re- 
quires, in  order  to  the  maintaining  of  a  suit  at  law,  not  only 
that  there  should  be  a  decree  for  distribution,  but  that  a  re- 
funding bond  should  be  tendered.  Nix.  Dlj.  278,  §  12  ;  279, 
§17;  281,  §28. 

Thijs  statutory  remedy  is  of  comparatively  recent  origin. 
It  was  intended  for  the  ease  and  favor  of  jiersons  entitled  to 
distributive  shares.  It  furnishes  a  cumulative  remedy,  and 
was  not  designed  to  limit  or  qualify  the  ancient  jurisdiction 
of  the  court  of  equity  over  the  subject. 

Such  was  the  view  of  Chancellor  Kent  in  regard  to  a  simi- 
lar statute  in  the  state  of  New  York.  Dccouche  v.  SavetieVj 
3  Johns.  Ch.  R.  222 ;  Seymour  v.  Seymour,  4  Ibid.  409. 

And  such,  so  far  as  I  am  aware,  has  been  the  view  uni- 
formly taken  of  our  own  statute. 

The  Court  of  Chancery  is  not  deprived  of  its  original  juris- 
diction in  any  case,  either  by  the  operation  of  a  statute  con- 
ferring similar  jurisdiction  upon  the  common  law  courts,  or 
l>y  the  adoption  in  those  courts,  of  the  j)rincip]es  or  practice 
of  courts  of  equity.  Alklnson  v.  Leonard,  3  Bro.  C.  R.  218; 
King  y.  Baldwin,  17  Johns.  R.  384  ;  Sailfy  v.  Elmore,  2 
Paige  497;  Varct  v.  New  York  Ins.  Co.,  7  Paige  560; 
White  V.  Meday,  2  Edw.  Ch.  R.  486. 

The  concurrent  jurisdiction  of  the  court  of  equity  with 
the  Prerogative  Courts  over  the  administration  of  the  assets 
of  deceased  persons,  has  been  long  and  well  settled.  The 
jurisdiction  is  constantly  exercised  in  behalf  of  legatees  and 
next  of  kin  for  the  recovery  of  their  shares  of  the  estate,  as 
well  as  on  behalf  of  creditors  and  executors  or  administra- 
tors.    1  Story's  Eq.  Jar.,  §  532,  §  541-2. 

The  remedy  of  the  next  of  kin  for  the  recovery  of  a  dis- 
tributive share  by  bill  in  equity,  was  established  as  early  as 


MAY  TERM,  1863.  239 

Frey  v.  Demarest  et  al. 

the  reign  of  Charles  II.  Gibbons  v.  Dmoley,  2  Chan.  Cas, 
198;  Pampl'iii  v.  Green,  Ibid.  95;  Matthews  v.  Newley  1 
Vern.  133;   Huward  v.  Howard,  Ibid.  131. 

In  this  state  the  jurisdiction  of  the  court  of  equity  over 
the  accounts  of  executors  and  administrators,  and  to  enforce 
the  claims  of  creditors,  legatees,  and  next  of  kin,  has  been 
repeatedly  affirmed,  and  is  constantly  exercised.  The  juris- 
diction itself,  as  well  as  the  limitations  of  its  exercise,  are 
well  settled.  Manuscript  opinions  of  Chancellor  Williamson 
in  Garrabrant  v.  Lawrence,  and  in  Burtis  et  al.  v.  Adin'rs 
of  Hopkins;  3IeeI:er  v.  Marsh,  Saxton  198;  King  v.  Ex'rs 
of  Berry,  2  Green's  Ch.  R.  44,  261  ;  Salter  v.  Williamson, 
1  Green's  Ch.  R.  480,  489 ;  Smith  v.  3Ioore's  E.vr,  3  Greea's 
Ch.  R.  485  ;  Vanrnater  v.  Slckler,  1  Stockt.  483  ;  Clarke  v, 
Johnson,  2  Stockt.  287. 

The  cases  show  that  a  bill  in  equity  may  be  filed  for  the 
recovery  of  a  legacy  or  distributive  share,  either  before  or 
after  a  settlement  in  the  Or{)hans  Court.  Unless  forsome 
special  cause,  a  court  of  equity  will  not  interfere  with  the 
ordinary  jurisdiction  of  the  Orj)hans  Court  in  the  settlement 
of  the  accounts  of  executors  or  administrators.  Nor  will  it 
attempt  to  look  behind  such  settlement,  unless  on  the  ground 
of  fraud  or  mistake. 

There  is  nothing  in  the  complainant's  bill  to  justify  any 
interference  witli  the  settlement  made  by  the  administrator 
in  the  Orphans  Court.  But  she  is  entitled  to  an  account  of 
the  balance  found  to  be  in  the  hands  of  the  administrator 
upon  that  settlement,  with  interest  thereon,  or  with  the  ac- 
cumulation thereof  in  the  hands  of  the  administrator.  The 
great  length  of  time  that  the  fund  has  been  in  the  hands 
of  the  administrator,  not,  as  the  bill  alleges  and  as  the  «le- 
murrer  admits,  invested  for  the  benefit  of  the  comj)laiuant, 
but  mingled  with  his  own  funds  by  the  administrator,  and 
used  for  his  own  profit,  entitles  the  complainant  to  a  dis- 
covery and  an  account  from  the  defendajit,  and  to  the  aid  of 
this  court  in  the  maintenance  of  her  rights. 
The  demurrer  is  overruled  with  costs. 

Cited  in  Dorshimer  v.  Rorback,  8  C.  E  Gr.  52. 


240  CASES  IN  CHANCERY 


Smith  V.  Duncan. 


Daniel  Smith  vs.  George  Duncaw. 

1.  Gross  inadequacy  of  price  in  the  absence  of  fraud,  mistake,  illegality, 
or  surprise,  is  not  sufficient  to  set  aside  a  sheriff's  sale  and  conveyance 
under  an  execution  at  law. 

2.  A  court  of  equity  will  not  afford  relief  where  the  complainant  has 
been  guilty  of  gross  laches,  or  where  the  injury  was  caused  by  his  own 
inexcusable  negligence  and  inattention  to  his  interests. 

3.  A  sheriff's  sale  and  conveyance  will  not  be  set  aside  where  the  prop- 
erty has  been  resold  to  a  third  party  for  a  valuable  consideration,  without 
notice  of  the  complainant's  equity.  Where  the  equities  are  equal,  the 
court  will  not  interfere  with  the  party  holding  the  legal  title,  either  for 
discovery  or  relief. 


-  On  final  hearing. 

I.  W.  Scudder,  for  complainant. 

Winfield,  for  defendan.t. 

Cases  cited  by  complainant's  counsel.  Stockton  v.  Ford, 
11  H(m.  247;  Harden  v.  Patterson,  5  Johns.  Ch.  R.  4S  ; 
Leisenring  v.  Black,  5  Watts  303 ;  Galbraith  v.  Elder,  8 
Ibid.  81 ;  Hockenbury  v.  Carlisle,  5  Watts  &  Serg.  348  ; 
Cleavlnger  v.  Reimar,  3  Ibid.  486 ;  Henry  v.  Raiman,  25 
JPenn.  354;  Surget  v.  Byers,  1  Hempstead  C.  C.  R.  715; 
Fordy.  Hatrington,  \Q  N.  Y.  285;  Adams  Eq.  184;  Bene- 
dict V.  Smith,  10  Faige  126;  Hoivell  v.  Baker,  4  Johns. 
Ch.  R.118;  2  Sugden  on  Vendors  552,  560,  §  48,  66,  {ed 
1851);  1  Story's  Eq.  Jur.,  §  400;  Peim.  v.  Craig,  1  Green'k 
B.  495. 

Cases  cited  by  defendant's  counsel.  Haioley  v.  Cramer,  i 
Cowen  740;  McCollum  v.  Hubbert,  13  Ala.  289;  Fox  v. 
Mackreth,  2  Bro.  Ch.  R.  400 ;  Hamilton  v.  Shrewsbury,  4 
Band.  427;  Tripp  v.  Cook,  26  Wend.  159;  Campbell  v. 
Gardner,  3  Stockt.  429 ;  Frakes  v.  Brown,  2  Black/.  295 ; 
Spencer  v.  Champion,  13   Conn.  11  ;   Neilson  v.  Neilson,  5 


MAY  TERM,  1863.  241 

Smith  V.  Duncan. 

Barb.  568  ;  Champenois  v.  White,  1  Wend.  92 ;  Evans  v. 
Parker,  20  Ibid.  623  ;  Porter  v.  Boone,  1  Watts  &  Serg.  251  j 
-4mer.  7ns.  Co.  v.  Oakley  9  Pa/^/e  263  ;  Mohaick  Bank  v. 
Atwater,  2  Paige,  54  ;  Williamson  v.  i)a/e,  3  Johns.  Ch.  R. 
290;  Livingston  v.  Byrne,  11  Johns.  R.  555,  620;  Oatoalt 
V.  Disborough,  2  Greenes  Ch.  R.  214;  Skillman  v.  Hulcomb, 
1  Beas.  131  ;   C/ar^  v.  Underwood,  17  Barb.  222. 

The  Chancellor.  The  bill  is  filed  by  the  defendant  in 
an  execution  at  law,  to  set  aside  a  sheriff's  sule  of  real  estate, 
made  under  the  execution.  The  evidence  leaves  no  room  for 
doubt  that  the  complainant's  interests  were  prejudiced  by  the 
sale.  The  property  was  struck  off  for  $25,  and  was  sold 
immediately  afterwards  for  $1500. 

But  there  are  insuperable  difficulties  in  the  way  of  the 
complainant's  title  to  relief 

1.  There  is  no  evidence  of  fraud  or  unfairness  in  the  con- 
duct of  the  sale.  It  was  duly  advertised,  in  compliance  with 
the  requirements  of  the  statute.  The  complainant,  moreover, 
had  actual  notice  of  the  time  and  place  of  sale.  The  sheriff 
testifies  that  he  gave  him  personal  notice  of  the  time 
and  place  at  which  the  property  was  originally  advertised 
for  sale.  He  did  not  then  attend,  and  the  sale  was  ad- 
journed. He  was  notified  of  the  time  and  place  to  which 
the  sale  was  adjourned,  and  failing  to  attend,  the  property 
was  then  struck  off.  There  is  no  evidence  that  the  com- 
plainant was  prevented  from  attending  the  sale  by  accident 
or  mistake.  Nor  is  the  allegation  of  surprise  sustained  by 
the  evidence.  The  allegation  of  the  bill  is,  that  the  com- 
plainant relied  upon  a  third  party  to  attend  the  sale  on  his 
behalf,  and  that  the  person  so  relied  upon  was  absent  from 
the  state  at  the  time  of  the  sale.  But  the  evidence  does  not 
show  that  his  absence  was  a  surprise  to  the  complainant,  or 
that  he  was  not  fully  aware  that  he  was  not  present  at  the 
time  of  the  adjournment.  The  person,  upon  whom  the  com- 
plainant professes  to  have  relied,  was  not  called  as  a  witness 


242  CASES  IN  CHANCERY. 

Smith  V.  Duncan. 

and  the  fair  presumption  is  that  there  M-as  no  good  ground 
for  relying  upon  his  attendance.  The  evitlenee  ])resents  a 
case  of  inexcusable  negligence  and  inattention  to  his  interests, 
on  the  part  of  the  complainant.  Against  such  gross  laches, 
it  is  not  the  province  of  a  court  of  equity  to  relieve. 

2.  Kelief  is  sought,  not  against  the  purchaser  at  the 
sheriff's  sale,  but  against  his  alienee.  The  defendant  claims 
to  be  a  bona  fide  purchaser  for  valuable  consideration.  The 
evidence  shows  that  he  paid  the  full  amount  of  the  purchase 
money.  One  thousand  dollars  was  paid  before  he  received 
actual  notice  of  the  complainant's  claim.  He  is  souglit  to  be 
charged  with  constructive  notice  of  the  circumstances  of  the 
sale,  which  form  the  basis  of  the  complainant's  claim  to  relief 
Admitting  that  the  circumstances  of  tlie  sheriti"'s  sale  were 
such  as  to  entitle  the  c(>m])lainant  to  relief  as  against  the 
purchaser  under  him,  the  evidence  is  not  sutKcient  to  destroy 
the  defendant's  claim  to  the  chai'acter  of  a  hona  fide  \n\v- 
chaser  for  a  valuable  consideration,  without  notice  of  the 
complainant's  equity.  His  equity  is  at  least  equal  to  that 
of  the  complainant,  and  he  has  the  legal  title.  Under  such 
eircumstances,  equity  will  not  interfere,  either  for  discovery 
or  relief.     1  Story's  Eq.  Jar.,  §  64,  c. 

The  attorney  of  the  plaintilF  became  the  j)urchaser  at  the 
sheriff's  sale.  Under  the  circumstances  of  the  ease  lie  would, 
in  accordance  with  a  familiar  principle  of  equity,  have  been 
regarded  as  a  trustee  f)r  the  benefit  of  his  client.  Howell  v. 
Baker,  4  Johns.  Ch.  R.  118  ;  Adams'  Eq.  184. 

But  the  plaintiff  in  execution  is  not  seeking  redress,  nor 
is  it  perceived  how  this  princij)le  can  be  invoked  in  favor  of 
the  defendant.  He  has  no  claim  for  equitable  relief  against 
the  plaintiff  in  execution.  Nor  does  the  case  fall  witiiin  the 
principle  adopted  and  applied  in  Stockton  v.  Ford,  11  How' 
ard  247. 

The  fact  that  a  part  of  the  purchase  money  was  j)aid  aftei 
notice  of  the  complainant's  equity,  cannot  operate  to  render 
the   conveyance    to    the   defendant    fraudulent.     Its    utmost 


MAY  TERM,  1863.  243 

Jordan  et  al.  v.  Clark  et  al. 

effect  would  be,  in  case  the  sale  was  set  aside,  to  deprive  the 
plaintiff  of  an  equitable  claim  to  a  return  of  that  portion  of 
the  purchase  money. 

The  bill  is  dismissed,  without  costs. 

Cited  in  Kloepping  v.  Stallmacher,  6  C.  E.  Gr.  329. 


Joseph  C.  Jordan  and  wife  and  others  vs.  Andrew  J. 
CijARK  and  others. 

1.  As  a  general  rule,  where  the  will  is  silent  as  to  interest,  a  legacy 
bears  interest  only  from  the  time  it  is  made  payable.  But  where  a  legacy 
to  a  child  of  the  testator  is  made  payable  at  a  future  day,  and  no  mainte- 
nance in  the  meantime  is  provided  for  the  legatee,  the  legacy  bears  inter- 
est from  the  deatli  of  the  testator. 

2.  Where  the  testator  has  expressly  provided  maintenance  up  to  a  cer- 
tain period,  leaving  a  chasm  between  that  period  and  the  time  of  the  pay- 
ment of  the  legacy  unprovided  for,  interest  will  be  allowed  upon  the  leg- 
acy during  such  interval,  by  way  of  maintenance. 

3.  Where  the  devisee  of  land  charged  with  the  payment  of  legacies,  has 
furnished  the  legatees  with  support,  though  not  in  strict  conformity  with 
the  requirements  of  the  will,  and  such  support  was  furnished  and  accepted 
as  a  substitute  for  the  provision  directed  by  the  will,  and  was  in  fact  more 
advantageous  to  the  k-g.-itees  tlian  the  interest  on  tlie  legacies  would  have 
been,  the  period,  during  wliich  such  support  was  furnished,  will  be  de- 
ducted from  the  time  during  which  interest  is  allowed  on  the  legacy. 

4.  Where  a  testator,  by  his  will,  provides  that  his  minor  children  shall 
receive  their  maintenance  upon  his  homestead  farm,  so  long  as  the  devisees 
and  their  mother  agree  to  continue  upon  it  and  support  them  there,  if  the 
children,  without  the  consent  of  their  mother  and  the  devisees,  leave  tlie 
farm  during  the  period  for  which  the  testator  provided  for  their  mainte- 
nance there,  they  can  claim  it  in  no  other  form ;  but  otherwise,  if  they 
leave  by  constraint,  and  not  from  clioice. 

5.  Upon  a  bill  filed  to  recover  the  interest  of  a  legacy  only,  a  decree 
cannot  be  made  for  the  payment  of  the  principal  which  has  fallen  duo 
since  the  filing  of  the  bill. 

6.  Such  decree  is  not  within  the  special  prayer  for  relief,  and  could  not 
have  been  prayed  for  at  the  time  of  filing  the  bill.  If  relief  is  asked  to 
which  the  complainant  is  not  entitled,  the  bill  is  demurrable. 

7.  Under  the  general  prayer  for  relief,  the  relief  granted  must  be  agree- 
able to  the  case  made  by  the  bill,  and  such  as  the  case  stated  will  justify. 

8.  In  a  foreclosure  suit  if  the  mortgage  is  forfeited,  and  the  complainant 


244  CASES  IN  CHANCERY. 

Jordan  et  al.  v.  Clark  et  al. 

entitled  to  a  decree  of  foreclosure  at  the  time  of  the  commencement  of  the 
suit,  a  decree  for  the  whole  amount  due  upon  the  mortgage,  whether  it 
becomes  due  before  or  after  the  filing  of  the  bill,  is  strictly  within  the 
prayer  for  relief,  and  such  as  the  case  stated  will  justify. 


Hannah  and  P.  L.  Voorhees,  for  complainants. 

S.  H.  Grey,  for  defendants. 

The  Chancellor.  The  bill  was  filed  by  and  on  behalf 
of  the  infant  children  and  legatees  of  Joel  G.  Clark,  deceased, 
to  recover  the  interest  on  certain  legacies  bequeathed  to  them 
by  their  father,  or  a  provision  for  their  support  and  main- 
tenance. The  legacies  are  charged  upon  the  real  estate  de- 
vised to  the  defendants.  The  question  raised  by  the  pleadings 
is,  whether,  under  the  provisions  of  the  will,  the  legatees  are 
entitled  to  recover  anything  beyond  the  principal  of  the 
legacies. 

The  testator  bequeathed  to  each  of  the  complainants,  his 
three  daughters,  Mary,  Emeline,  and  Martha  Jane,  $400,  to 
be  paid  to  her  at  the  age  of  twenty-one  years,  and  charged 
his  homestead  farm  with  the  same.  He  devised  his  home- 
stead farm  in  equal  portions  to  his  three  sons,  Andrew, 
Joel,  and  James,  in  fee,  subject  to  the  legacies  in  his  will. 
He  also  bequeathed  to  his  said  sons,  the  devisees  of  the  home- 
stead, his  stock,  farming  utensils,  household  goods  and 
kitchen  furniture,  upon  condition  of  their  continuing  on  the 
homestead  farm,  and  farming  and  cultivating  the  same  to  the 
best  advantage  and  interest  of  the  whole  family  ;  otherwise, 
to  be  sold  for  the  benefit  of  his  children  in  equal  proportions. 

By  the  eleventh  item  of  his  will,  the  testator  requests  that 
his  wife  and  his  said  three  sons  shall  continue  on  his  farm, 
cultivating  the  same  to  the  best  advantage  and  interest  of 
the  whole  family  ;  and  in  case  of  refusal  or  neglect  on  their 
part  so  to  farm  the  same,  he  directs  that  the  farm  shall  be 
rented  until  his  youngest  son,  James,  becomes  twenty-one 
years  of  age,  and  the  net  proceeds  appropriated  to  schooling, 


MAY  TERM,  1863.  245 

Jordan  et  al.  v.  Clark  et  al. 

clothing,  and  maintaining  his  children  equally.  And  in  case 
of  his  wife  and  sons  not  agreeing  to  continue  on  the  fiirm  as 
requested,  the  testator  further  directs  that  his  stock,  farming 
utensils,  household  goods  and  kitchen  furniture,  shall  be  sokl 
and  applied  to  the  schooling,  clothing,  and  maintenance  of 
his  children  equally. 

At  the  time  of  his  death,  James,  one  of  the  sons,  and  the 
three  daughters,  were  minors.  James  came  of  age  on  the 
fifth  of  March,  1852.  Until  this  period  the  family  continued 
together  on  the  farm,  as  requested  by  the  testator,  and  the 
complainants  were  there  su[)ported  as  provided  for  in  the 
will.  At  this  period  the  farm  was  partitioned  between  the 
three  devisees. 

The  provisions  of  the  will  are  somewhat  conflicting,  and 
the  intention  of  the  testator,  as  to  the  provision  for  the  sup- 
port of  his  minor  childrien,  after  James  came  of  age,  not  en- 
tirely free  from  doubt.  If  it  was  intended  that  the  family 
should  continue  together  upon  the  farm  until  the  youngest 
child  became  of  age,  then  the  complainants  were  clearly  en- 
titled, upon  the  division  of  the  farm  b)'  the  defendants,  to 
have  the  value  of  the  stock,  farming  utensils,  and  household 
and  kitchen  furniture,  aj)j)lied  to  their  support  and  education 
during  their  minority.  If,  on  the  other  hand,  it  was  in- 
tended that  this  provision  should  continue  only  till  James 
came  of  age,  as  the  defendants  insist  it  was,  then  no  pro- 
vision whatever  is  made  for  the  support  of  the  complainants 
after  that  time,  during  their  minority.  Assuming  the  latter 
to  be  the  true  construction  of  the  will,  the  complainants  are 
entitled  to  recover  interest  on  their  legacies. 

As  a  general  rule,  where  the  will  is  silent  as  to  interest, 
a  legacy  bears  interest  only  from  the  time  it  is  made  pay- 
able. But  where  a  legacy  to  a  child  of  the  testator  is  made 
])ayable  at  a  future  day,  and  no  maintenance  in  the  mean- 
time is  provided  by  the  testator  for  the  legatee,  the  legacy 
bears  interest  from  the  death  of  the  testator.  Brinherliof  v. 
Ex^rs  of  Merselis,  4  Z(ih.  680 ;   Cox  v.  CoyTcendall,  2  Beas, 


246  CASES  IN  CHANCERY. 

Jordan  et  al.  v.  Clark  et  al. 

138;  Hole  v.  Mole,  I  Dick.  SIO ;  Heath  v.  Perry,  Z  AtL 
101  ;  Lupton  v.  Lupton,  2  Johns.  Ch.  R.  628. 

So  wliere  the  testator  has  expressly  provided  maintenance 
up  to  a  certaitt  period,  leaving  a  chastn  between  that  ])eriod 
and  the  time  of  the  payment  of  the  legacy  unprovided  for, 
interest  will  be  allowed  upon  the  legacy  during  such  inter- 
val, by  way  of  maintenance.    Chambers  V.  Goldwui,!!  Ves.l. 

The  period  during  which  the  complainants  remained  with 
their  brother  James,  after  the  farm  was  divided,  must  be 
deducted  from  the  time  during  which  interest  is  allowed  ou 
the  legacy.  Though  the  provision  furnished  for  their  sup- 
port during  this  period  was  not  in  strict  conformity  with  the 
requirements  of  the  will,  it  was  no  doubt  furnished  and 
accepted  as  a  substitute  for  the  provision  directed  by  the 
will,  and  was  more  advantageous  to  the  legatees  than  the 
interest  on  the  legacy  would  have  been.  The  answer  states 
that  the  maintenance  and  schooling  of  the  complainants, 
during  the  time  when  it  was  furnished  pursuant  to  the  di- 
rections of  the  will,  cost  from  $1  to  $1.50  per  week.  This 
is  more  than  double  the  amount  of  the  annual  interest  upou 
each  legacy. 

The  fact  alleged  in  the  answer,  that  the  defendants  have 
paid  the  debts  of  the  estate  to  an  amount  exceeding  the 
value  of  the  stock,  farming  utensils,  and  household  and 
kitchen  furniture,  ordered  to  be  sold  for  the  benefit  of  the 
complainants,  can  in  no  wise  affect  their  claim  for  relief. 
The  will  charges  the  debts,  so  far  as  they  shall  remain  un- 
satisfied by  the  personal  assets,  upon  the  land  devised  to  the 
defendants. 

It  was  manifestly  the  desire  of  the  testator  that  his  minor 
children  should  receive  their  suj)p(»rt  and  maintenance  ujion 
the  farm,  so  long:  as  the  devisees  and  their  mother  agreed 
to  continue  upon  the  farm  and  to  furnish  the  support  there. 
Had  the  minor  children,  without  the  consent  of  their  mother 
and  brothers,  left  the  farm  during  the  continuance  of  the 
period  for  which  the  testator  provided  their  maintenance 
upon  the  farm,  they  could  have  claimed  it  iu  no  other  form. 


MAY  TEEM,  1863.  247 

Jordan  et  al.  v.  Clark  et  al. 

But  not  only  did  the  defendants  fail  to  continue  to  occujiy 
the  faiin  in  the  mode  desired  by  the  testator,  hut  it  is  apj)a- 
rent,  from  the  evidence,  that  the  complainants  left  the  farm 
by  constraint,  rather  than  from  any  choice  of  their  own. 

The  claim  of  Jordan  and  wife  has  been  satisfied  since  the 
filing  of  the  bill  of  com[)laint.  It  must  be  referred  to  a 
master  to  ascertain  and  rejiort  the  amount  due  for  interest 
upon  the  legacies  of  the  other  complainants  from  tlie  twenty- 
fourth  of  December,  1855,  giving  credits  for  all  payments 
made  since  that  time,  by  either  of  the  defendants,  for  the  sup- 
port of  the  complainants. 

It  appears  by  the  evidence  that  the  princij)al  of  the  legacy 
to  one  of  the  complainants,  has  fallen  due  since  the  filing  of 
the  bill  of  complaint.  But  no  relief  can  be  decreed  on  that 
ground.  A  decree  f()r  the  princi])al  of  the  legacy  is  not 
within  the  special  j)rayer  for  relief.  No  such  relief  could 
have  been  prayed  for  at  the  time  of  filing  the  bill.  If  a 
complainant  asks  for  relief  when  he  is  not  entitled  to  it,  his 
bill  would  be  demurrable.     Story^s  Eq.  PL,  §  17,  43. 

Nor  can  such  decree  be  made  under  the  general  j)rayer 
for  relief,  for  the  relief  granted  must  be  agreeable  to  the 
case  made  by  the  bill,  and  such  as  the  case  stated  will  justify. 
Story's  Eq.  PL,  §  40,  42. 

In  a  foreclosure  suit,  the  complainant,  in  practice,  recovers 
instalments  of  principal  as  well  as  of  interest,  falling  due 
after  the  commencement  of  the  suit.  If  the  mortgage  is 
forfeited,  and  the  complainant  entitled  to  a  decree  of  fore- 
closure at  the  time  of  the  commencement  of  t!ie  suit,  a  de- 
cree for  the  whole  amount  due  uj)on  the  mortgage,  whetlier 
it  became  due  before  or  after  the  commencement  of  the  suit, 
is  strictly  within  the  prayer  for  relief,  and  such  as  the  case 
stated  will  justify.  It  becomes  simply  a  question  of  the 
amount  due  upon  the  mortgage  at  the  date  of  the  master's 
report.  This  practice  affords  no  justification  for  a  decree  for 
the  principal  of  the  legacy  in  this  cause,  however  clear  the 
complainants  right  may  be. 

Cited  in  Eir  of  Kearney  v.  Kearney,  2  C.  E.  Gr.  63. 


248  CASES  IN  CHANCERY. 


Ex'rs  of  Reed  v.  Reed. 


Executors  of  Joseph  W.  Reed  vs.  William  Reed. 

1.  Where  the  cause  is  heard  upon  bill  and  answer,  the  allegations  of  the 
answer  are  to  be  taken  as  true. 

2.  A  tenant  for  life  is  entitled  to  work  a  mine,  quarry,  clay-pit  or  sand- 
pit, whicli  has  been  opened  and  used  by  the  former  owner.  It  is  a  mode 
of  enjoyment  of  the  land  to  which  he  is  entitled. 

3.  A  bill  asking  an  injunction  to  restrain  waste,  and  also  an  account  for 
rent  due,  is  demurrable  on  the  ground  of  multifariousness. 

4.  When  the  title  of  cestui  que  trusts  to  the  fund  in  question  is  involved, 
no  decree  will  be  made  unless  they  are  before  the  court. 

5.  On  final  hearing,  permission  given  to  amend  by  consent,  by  adding 
necessary  parties  within  ten  days,  and  before  signing  the  decree. 


Beashy,  for  complainants. 
A.  V.  SchencJc,  for  defendant. 

The  Chancellor.  Jose[)h  W.  Reed,  the  complainants' 
testator,  by  his  will,  devised  to  his  executors  a  farm  for  the 
life  of  his  brother,  William  Reed,  tiie  defendant,  in  trust  that 
they  would  permit  him  to  occupy  and  enjoy  the  same,  upon 
payment  to  them,  for  the  use  of  the  testator's  sisters,  Eliza- 
beth Johnson  and  Ann  Herron,  of  the  yearly  rent  of  $100, 
to  be  divided  equally  between  them.  On  the  death  of  William 
Reed,,  the  defendant,  the  land  is  devised  in  fee  to  the  children 
of  the  testator's  said  sisters,  viz.  to  William  R.  Johnson  and 
John  H.Johnson,  thechildren  of  Elizabeth  Johnson,  who  are 
the  complainants;  and  to  the  children  of  Ann  Herron.  The 
defendant,  since  the  death  of  the  testator,  has  been,  and  still 
is  in  the  possession  of  the  farm  by  the  permission  of  the  com- 
plainants. 

The  bill  charges  that  the  defendant  has  committed  waste 
on  the  premises,  by  cutting  more  timber  and  wood  thereon 
than  was  necessary  for  the  use  of  the  farm,  and  by  selling 
large  quantities  of  sand,  dug  upon  the  land,  to  the  prejudice 
of  the  inheritance;  and  that  the  defendant  is  also  in  arrear  tor 


MAY  TERM,  1863.  249 

Ex 'is  of  Reed  v.  Reed, 

rent,  nearly  $200.  Tlie  bill  prays  that  tlie  defendant  may 
be  decreed  to  make  satisfaction  for  the  waste  committed  ;  that 
he  may  be  restrained  from  the  commission  of  further  waste  ; 
and  that  the  complainants  may  have  such  further  and  other 
relief  as  may  be  agreeable  to  equity. 

The  answer  denies  the  commission  of  waste  by  the  cutting 
of  timber;  admits  that  the  defendant  has  dug  and  sold  sand 
from  the  ancient  sand  pits  upon  the  premises,  used  for  that 
purpose  by  the  testator  in  his  lifetime,  and  by  other  owners 
and  tenants  of  the  premises;  alleges  that  the  sand  j)its  are 
upon  a  portion  of  the  premises  which  can  be  used  for  no 
other  purpose,  and  are  unfit  for  cultivation;  but  claims  that 
the  defendant  has  a  right  to  such  use  of  the  premises,  and 
that  it  occasions  no  prejudice  to  the  inheritance. 

The  answer  further  alleges  that  twenty  acres  of  woodland, 
a  part  of  said  premises,  had  been  sold  by  the  executors  by 
order  of  the  Orphans  Court,  aiid  that  in  consequence  of  such 
sale,  and  of  the  defendant's  consent  thereto,  the  complainants 
had  agreed,  with  the  consent  of  all  parties  interested,  that  the 
defendant  should  pay  only  $80  per  annum  rent  for  the  resi- 
due of  the  farm  remaining  unsold  ;  that  only  one  year's  rent 
is  in  arrear  and  unpaid  ;  and  that,  on  the  settlement  of  the 
executor's  account,  there  remained  in  their  hands  of  the  pro- 
ceeds of  said  sale,  a  balance  of  $249.51,  to  the  use  and  benefit 
of  which  the  defendant  claims  to  be  entitled.  The  cause  is 
brought  to  hearing  upon  bill  and  answer. 

1.  The  answer  denies  the  commission  of  waste  by  cutting 
timber  on  the  premises,  and  thus  effectually  dis[)oses  of  that 
part  of  the  complaint.  The  allegations  of  the  answer  upon 
the  present  hearing  are  to  be  taken  as  true. 

2.  The  tenant  for  life  is  entitled  to  work  a  mine,  quarry, 
clay-pit,  or  sand-pit,  wiiich  has  been  opened  and  used  by  the 
former  owner.  The  working  of  the  mine  or  quarry  is  a 
mode  of  enjoyment  of  the  land  to  which  the  tenant  for  life 
is  entitled.  It  is  well  settled,  in  regard  to  tenancies  iu 
dower,  that  the  widow  is  entitled  to  dower  iu  such  miuei 


250  CASES  IN  CHANCERY. 


Ex'rs  of  Reed  v.  Reed. 


and  quarries  as  were  actually  opened  and  used  during  the 
lifetime  of  iier  husband.  Stougliton  v.  L'.'hjJi,  1  Taunt.  402; 
Billings  v.  Taylor,  10  Pick.  460  ;  Conies  v.  Ckeever,  1  Cowea 
460  ;  Rockwell  v.  Morgan,  2  Beas.  389  ;  Park  on  Dower  1 15, 
119  ;  1    Washburn  on  Peal  Prop.  165. 

Tlie  same  principle  ap[)lie3  to  other  estates  for  life.  So  far 
as  relates  to  the  commission  of  waste,  the  bill  of  complaint 
cannot  be  sustained. 

3.  The  residue  of  the  complaint  relates  to  the  claim  for 
rent.  The  bill  contains  no  prayer  for  an  account  of  the  rent, 
nor  for  a  decree  for  payment.  A  reference  to  take  an  account 
of  tlie  rent  due  is  now  asked,  under  the  general  prayer  for 
relief.  It  may  well  be  questioned  whether  a  bill  asking  for 
an  injunction  to  restrain  waste,  and  also  an  account  for  rent 
due,  would  not  be  liable  to  objection  on  the  ground  of  mul- 
tifariousness. The  two  grounds  of  suit  are  wholly  distinct 
and  unconnected,  and  each  is  sufficient  as  stated  to  sustain  a 
bill.  Bedsole  v.  3Ionroe,  5  Ired.  Eq.  R.  313;  Storijs  Eq. 
PL,  §  271,  c. 

But  regarding  this  objection  as  waived  by  the  answer, 
and  as  not  liable  to  prejudice  the  rights  of  any  of  the  parties, 
still  I  think  the  complainants  are  not  entitled  to  an  account. 
The  proper  j)arties  are  not  before  the  court.  The  bill  claims 
that  the  corn[)lainants  are  entitled  to  recover  rent  at  the  rate 
of  $100  per  annum.  The  answer  insists  that  the  defendant, 
by  virtue  of  an  agreement  made  by  the  com[)lainants,  by  and 
with  the  consent  of  all  the  parties  interested,  is  liable,  since 
the  sale  of  a  part  of  the  land,  to  pay  rent  only  at  the  rate  of 
$80  per  annum.  By  the  terms  of  the  will,  the  tenant  for 
life  is  to  pay  to  the  executors  rent  at  the  rate  of  $100,  which 
is  to  be  divided  by  the  executors  equally  between  the  two 
sisters  of  the  testator.  The  cestui  que  trusts  are  not  before 
the  court.  They  would  not  be  bound  by  any  decree  that; 
might  be  made  in  the  case.  The  defendant  also  claims,  by 
his  answer,  an  interest  in  the  surplus  of  the  proceeds  of  the 
sale  of  the  land  in  the  hands  of  the  executor.  Whatever 
view  may  be  taken  of  the  claim  of  the  complainants,  the 


MAY  TERM,  [1863.  251 

Shipman  v.  Cook  et  al. 

parties  interested  in  that  fund  are  not  made  i>arties  to  the 
suit.  As  the  case  now  stands  upon  tiie  bill  and  answer,  the 
necessary  parlies  to  tlie  account  are  not  before  the  court.  I 
think,  therefore,  that  the  bill  must  be  dismissed. 

If  the  parties  are  desirous  that  the  questions  arising  uj)on 
this  part  of  the  case  should  be  settled,  and  an  account  taken 
under  the  direction  of  the  court,  the  bill  may  be  amended 
by  consent,  by  adtling  the  necessary  parties  within  ten  days 
and  before  siirninuc  tiie  decree. 


Daniel  M.  SniPirAX  vs.  Jonx  Cook  and  others. 

1.  Tliongh  the  delivery  of  a  bill  or  note,  either  of  a  debtor  or  of  a 
third  parly,  is  not  payment  of  a  precedent  debt,  but  merely  pu>;pend3  the 
leraedy,  yet  if  the  liolder  be  gnilty  of  laches,  it  operates  as  a  complete  satis- 
faction. 

2.  Wliere  the  note  of  a  third  party  is  endorsed  by  a  mortgagor  to  the 
mortgagee,  and  is  accepted  by  liira  as  a  conditional  payment  upon  the 
bond,  the  mortgagor  is  entitled,  as  endorser,  to  a  notice  of  {>rotest  or  dis- 
honor. If  the  holder  of  the  note  fail  to  give  such  notice,  the  mortgagor  is 
discharged  not  only  from  liability  as  endorser,  but  also  from  liability  pro 
tanlo  upon. the  bond. 

3.  If  such  note  be  accepted  as  absolute  payment  on  the  bond,  and  the 
paymant  of  the  note  be  guaranteed  by  the  mortgagor,  the  guaranty  will 
not  restore  the  obligation.  The  mortgagor  would  be  liable  on  his  contract 
of  guaranty,  but  his  indebtedness  upon  the  bond  and  niorlgnge  would  not 
be  revived. 

4.  Gross  laches  and  long  delay  on  the  part  of  the  complainant  in  a  sim- 
ple foreclosure  case,  in  commencing  and  prosecuting  his  suit,  is  unjust  and 
oppressive  to  the  defendant,  and  is  a  strong  circumstance  against  the  jus- 
tice of  the  complainant's  claim. 


Vrooniy  for  complainant,  cited  4  Johns.   Ch.  li.   616;  9 
Vesey  563. 

Vanatta,  for  defendants,  cited    Storj/  on  Prom.   Notes,  § 
117;    Wiseman  v.  Lyman,  7  3Iass.  286;  Tapley  v.  Martens^ 


252  CASES  IN  CHANCERY. 

Shipman  v.  Cook  et  al, 

8  T.  B.  451  ;   Camklge  v.  Allenhy,  6   Barn.  &   Cress.  373 ; 
Alderson  v.  Langdale,  3  Barn.  &  Ad.  660. 

The  Chancellor.  The  only  question  now  to  be  decided 
is,  whether  the  mortgage  which  the  complainant  seeks  to 
foreclose,  has  been  satisfied.  The  defendant  claims  certain 
credits  upon  the  mortgage,  which  are  disputed  by  the  com- 
plainant. 

The  first  subject  of  controversy  is  a  promissory  note  of 
John  A.  Kitchell,  for  $80,  payable  to  the  order  of  tlie  de- 
fendant, and  by  him  endorsed  to  the  complainant.  The  note 
bears  date  April  first,  1833,  and  was  endorsed  to  the  com- 
plainant before  its  maturity.  The  defendant  testified  that 
the  note  was  delivered  in  part  payment  of  the  mortgage 
debt.  The  complainant  states  that  the  understanding  was 
that  it  was  to  be  good  on  the  bond,  provided  the  money  was 
paid.  That  the  note  never  has  been  paid,  is  admitted.  The 
complainant  further  testifies  :  "  I  endorsed  it  on  the  bond-  at 
the  time  he  gave  it  to  me;  at  the  same  time  he  put  his  name 
on  the  back  of  it."  He  identifies  the  endorsement  referred 
to,  which  is  as  follows :  "  Received,  twenty-fourth  June, 
1833,  of  John  Cook,  twenty-eight  dollars,  for  one  year's  in- 
terest on  this  bond.  $28.  Daniel  M.  Shipman.  By  note 
of  J.  A.  Kitchell,  which,  when  paid,  will  be  in  full  for  the 
same."  The  last  clause  of  the  endorsement  is  not  only  after 
the  signature,  but  bears  unequivocal  evidence  of  not  being  a 
part  of  the  original  endorsement,  as  it  is  written  with  a  dif- 
ferent pen  and  with  different  ink.  It  can  add  nothing  what- 
ever to  the  weight  of  the  j)arol  evidence  of  the  complainant. 
Why  the  endorsement  relates  to  the  interest  only,  and  not 
to  the  entire  amount  of  the  note,  is  not  satisfactorily  ex- 
plained. Both  parties  agree  that  the  whole  note  was  to  be 
credited  on  the  bond.  In  the  absence  of  satisfactory  evidence 
as  to  the  terms  upon  which  the  note  was  agreed  \o  be  ac- 
cepted, whether  as  an  absolute  or  conditional  payment,  resort 
must  be  had  to  the  legal  operation  of  the  transfer. 

Though  the  delivery  of  a  bill  or  note,  either  of  the  debtor 


IMAY  TERM,  1863.  253 

Shipman  v.  Cook  et  al. 

or  of  a  tliird  party,  is  not  i)ayment  of  a  precedent  debt,  but 
merely  suspends  the  remedy,  yet  if  the  holder  be  guilty  of 
laches  it  operates  as  complete  satisfaction,  Camuhje  v.  Allenby, 
6  Barn.  &  Cress.  373  ;  Alderson  v.  Layigdale,  3  Bcmi.  &  Ad. 
660 ;  Denniston  v.  Imbrie,  3  Wash.  0.  C.  li.  396  ;  Broioer 
V.  Jones,  3  Johns.  R.  230  ;  Byks  on  Bills  303  ;  Slory  on 
Prom.  Notes,  §  1 1 7. 

No  notice  of  protest  or  dislionor  of  the  note  was  given  to 
the  defendant.  To  this,  as  endorser,  he  was  unquestionably 
entitled.  By  this  laches  on  the  part  of  the  holder  the  de- 
fendant was  discharged,  not  only  from  liability  as  endorser, 
but  from  liability  p7'o  ianto  upon  the  bond.  By  reason  of 
the  laches,  the  note  operated  as  complete  satisfaction  of  the 
indebtedness  for  which  it  was  received.  To  this  it  is  answered 
that  the  defendant  occupies  the  position  of  a  guarantor. 
Admitting  the  fact  to  be  so,  it  is  by  no  means  clear  that  the 
laches  of  the  holder  was  not  such  as  to  charge  him  with  the 
loss.  But  the  fact  is  not  satisfactorily  established  that  he- 
was  a  guarantor.  The  defendant  himself  swears  that  the 
guaranty  which  now  appears  over  his  name,  was  not  there 
when  he  endorsed  the  note.  Another  witness  testifies  that 
he  heard  the  complainant  say,  after  the  maturity  of  the  note, 
that  he  had  been  mistaken  as  to  the  party  whose  name  was 
signed  to  the  note,  and  that  he  feared  the  endorser  would 
escape  also.  These  witnesses  testify  as  to  a  very  ancient 
transaction,  and  standing  alone  it  would  be  unsafe  to  rely 
upon  their  testimony.  But  it  is  remarkable  that,  although 
the  complainant  sued  the  maker  of  the  note  and  failed  to 
recover  the  debt  for  want  of  property,  no  claim  was  ever 
made  against  the  defendant  on  the  contract  of  guaranty,  nor 
was  a  dollar  of  principal  or  interest  })aid  on  the  mortgage 
debt  for  eleven  years  after  the  date  of  the  alleged  guaranty. 
Again  :  if  the  note  was  taken  only  as  a  conditional  payment 
Uj)on  the  mortgage  debt,  why  should  the  complainant  have: 
asked  from  the  mortgagor  a  guaranty  of  the  note?  If  the 
note  was  dishonored,  having  been  accepted  only  as  a  condi- 
tional payment,  of  what  avail   was  the  guaranty  of  the  de-- 

VOL.  I.  Q 


254  CASES  IN  CHANCERY. 

Shipman  v.  Cook  et  al. 

fendant  ?  His  personal  liability  for  the  debt  remained  as 
obligor  upon  the  bond,  as  well  as  the  security  of  the  mortgage. 
There  was  no  reason  for  asking  a  guaranty.  It  did  not  add 
a  jot  to  the  complainant's  security.  If  that  guaranty  be  in 
fact  genuine,  it  affords  the  strongest  corroboration  of  the  de- 
fendant's evidence,  that  the  note  was  accepted  as  payment 
upon  the  bond.  If  so,  that  ends  the  controversy.  For  if 
the  note  was  accepted  as  absolute  payment  on  the  bond,  it  is 
clear  that  the  guaranty  will  not  restore  the  obligation.  The 
defendant  would  be  liable  on  his  personal  contract  of  guaranty, 
but  his  indebtedness  upon  the  bond  and  mortgage  would  not 
be  revived. 

The  defendant  also  claims  allowance  for  the  value  of  cattle, 
hogs,  corn,  and  spirits,  delivered  to  the  complainant  as  pay- 
ment on  said  mortgage  debt,  between  the  years  1833  and 
1837,  and  not  credited  on  the  bond.  The  delivery  of  most 
of  the  articles  is  clearly  proven,  to  an  amount  sufficient  to 
satisfy  the  mortgage.  The  complainant  himself  admits  that 
they  were  delivered  to,  and  received  by  him,  as  payments  on 
account  of  the  mortgage.  But  he  insists  that  the  value  of  the 
property  was  included  in  the  money  receipts  endorsed  upon 
the  mortgage,  duplicates  of  which  were  furnished  to  the  de- 
fendant. The  defendant,  on  the  other  hand,  testifies  that  he 
received  those  receipts  from  the  complainant ;  he  saw  them 
signed,  and  he  paid  the  sums  of  money  for  which  they  were 
given.  The  receipts  themselves  are  given  for  so  much  money 
paid.  They  contain  no  intimation  that  cattle,  corn,  or  other 
chattels,  constituted  any  part  of  the  amount.  I  find  no  satis- 
factory evidence  that  the  receipts  are  not  what  they  purport 
to  be — receipts  for  money  paid. 

The  complainant's  unsupported  evidence  cannot  overcome 
the  testimony  of  the  defendant,  corroborated  by  the  plain 
language  of  the  receipts.  It  appears  moreover  from  the 
complainant's  evidence,  that  he  had  an  entry  in  his  books,  of 
the  articles  thus  furnished  by  the  defendant  on  account  of 
the  bond.     That  book  the  complainant  was  notified  to  pro- 


MAY  TERM,  1863.  255 

Shipman  v.  Cook  et  al. 

(luce  in  evidence.  He  failed  to  do  so,  alleging  that  it  was 
lost.  What  is  still  more  significant,  the  defendant  testifies 
(hat  when  called  on  for  the  payment  of  this  debt,  he  saw  in 
the  hands  of  the  person  who  was  then  the  plaintiff's  attorney, 
the  list  of  the  articles  thus  furnished.  This  list  the  attorney 
refused  to  deliver  to  the  defendant,  but  he  did  exhibit  the 
note,  and  told  him  that  he  (the  attorney)  would  allow  the 
articles,  if  the  defendant  would  settle  and  pay  the  note.  This 
testimony  is  so  important  in  its  bearing  upon  the  cause,  that 
the  complainant  was  bound,  in  justice  to  himself  and  to  the 
court,  to  have  contradicted  or  explained  it.  Failing  to  do  so, 
it  must  be  taken  most  strongly  against  him.  It  is  shown 
that  although  the  attorney  has  ceased  to  act,  and  has  re- 
moved from  the  state,  he  was  in  the  state  while  the  testimony 
was  being  taken.  It  is  no  excuse  for  the  complainant  to 
allege  that  the  attorney  left  the  state  unexpectedly.  If  his 
evidence  could  not  have  been, taken  here,  it  might  have  been 
taken  by  commission  at  the  place  of  his  residence. 

Another  circumstance  has  impressed  my  mind  unfavorably 
in  regard  to  the  justice  of  the  complainant's  demands.  This 
difficulty  originated  thirty  years  ago.  The  complainant  had 
it  in  his  power  at  any  time  to  have  foreclosed  the  mortgage 
and  have  the  controversy  settled.  He  forbore  to  take  this 
step  until  the  defendant  absolutely  refused  to  make  further 
payments  upon  tlie  mortgage.  The  bill  was  at  length  filed 
on  the  fourteenth  of  January,  1849.  No  testimony  was 
taken  until  ten  years  after  the  defendant's  answer  was  on  file, 
and  then  not  until  an  order  of  the  court  was  made  requiring 
him  to  proceed.  After  the  evidence  was  closed,  the  cause 
again  slumbered  until  the  complainant,  on  the  motion  of  the 
defendant,  was  ordered  to  bring  the  cause  to  hearing,  or 
have  his  bill  dismissed.  A  simple  case  for  foreclosure  has 
thus  been  pending  in  the  court,  without  an  obstacle  inter- 
posed by  the  defendant,  for  a  period  of  over  fourteen  years. 
This  is  surely  not  the  conduct  of  a  party  confident  in  the 
justice  of  his  cause,  and  seeking  the  vindication  of  his  rights. 


256  CASES  IN  CHANCERY. 

Van  Doren  v.  Robinson  et  al. 

It  is  eminently  unjust  and  oppressive  to  the  defendant.  There 
is  no  need  of  a  reference  to  a  master.     If  the  credits  are  al- 
lowed, it  is  clear  that  the  Complainant's  debt  is  satisfied. 
The  bill  must  be  dismissed. 


Ferdinand  Yan  Doren  vs.  James  F.  Robinson  and  others. 

1.  Cestui  que  trusts  are  not,  it  seems,  necessary  parties  to  suits  against 
trustees,  to  compel  the  specific  performance  of  contracts,  except  where 
Bome  question  arises  touching  tlie  power  of  the  trustees  to  execute  the  con- 
tract, or  their  authority  to  act  under  it. 

2.  But  where  a  bill  in  equity  involves  the  title  of  the  cestui  que  trusts  to 
the  property  in  dispute,  or  where  they  are  interested,  not  only  in  the  fund 
or  estate  respecting  which  the  question  at  issue  has  arisen,  but  also  in  tiiat 
question  itself,  they  are  necessary  parties. 

3.  An  objection  for  want  of  proper  parties  taken  at  the  hearing  will  not 
prevail,  unless  such  parties  are  necessary  to  the  final  determination  of  the 
cause. 

4.  The  general  principle  is,  that  where  the  contract  is  incapable  of  being 
enforced  against  one  party,  that  party  is  equally  incapable  of  enforcing  it 
against  the  other.  But  the  principle  does  not  apply  where  the  contract, 
by  its  terms,  gives  to  one  party  a  right  to  the  performance,  which  it  does 
not  give  to  the  other. 

5.  Where  the  obligation  to  perform  rests  upon  one  of  the  parties  only, 
equity  will  enforce  the  contract  with  great  caution. 

6.  An  agreement  for  the  sale  of  laud  at  a  price  to  be  ascertained  hy  the 
parties,  is  too  incomplete  and  uncertain  to  be  carried  into  execution  by  a 
court  of  equity.  But  where  the  contract  is,  that  land  shall  be  conveyed 
"at  a  fair  price,"  or  "at  a  fair  valuation,"  the  court  will  direct  the  valua- 
tion to  be  made  by  a  master,  and  will  enforce  the  execution  of  the  contract. 

7.  The  true  principle  seems  to  be,  that  whenever  the  price  to  be  paid  can 
be  ascertained  in  consistency  with  the  terms  of  the  contract,  performance 
will  be  enforced.  But  the  court  will  not  make  a  contract  for  the  parties, 
nor  adopt  a  mode  of  ascertaining  the  price  not  in  accordance  with  the 
spirit  of  the  agreement. 

8.  A  mere  personal  contract,  not  running  with  the  land,  nor  binding  the 
alienee  at  law,  will  be  enforced  against  the  alienee  in  equity,  only  where 
he  is  chargeable  with  notice  of  the  contract. 

9.  Where  the  defendant  claims  title  through  a  deed  which  contains  the 


MAY  TERM,  1863.  257 

Van  Doren  v.  Robinson  et  al. 

covenant  sought  to  be  enforced,  he  is  chargeable  with  constructive  notice 
of  tlie  covenant. 

10.  Notice  of  a  deed  is  notice  of  its  contents,  and  where  a  purchaser 
cannot  make  out  a  title  but  by  a  deed  whicii  leads  him  to  another  fact,  he 
will  be  deemed  to  have  knowledge  of  that  fact. 

11.  Constructive  notice  is  knowledge  imputed  on  presumption,  too 
strong  to  be  rebutted,  that  the  knowledge  must  have  been  communicated.  J 

12.  Where  the  covenantee  in  a  conti-act  for  the  conveyance  of  land, 
permits  a  purchaser  to  acquire  title,  take  possession  of  the  premises,  and 
pay  the  purchase  money  without  an  intimation  of  his  claim  under  the 
covenant,  or  of  his  willingness  to  accept  the  title,  he  has  no  claim  to  relief 
in  equity 

13.  Specific  performance  is  relief  which  equity  will  not  give,  unices  in 
cases  where  the  parties  seeking  it,  come  as  promptly  as  the  nature  of  the 
case  will  permit. 


Vanatta,  for  complainant. 

Pitney,  for  J.  F.  Robinson. 

T.  Little,  for  the  otiier  defendants. 

The  Chancellor.  The  complainant,  by  deed  bearing 
date  on  the  eighth  of  April,  1843,  conveyed  to  Phebe  Wood- 
ward, a  tract  of  land  in  the  county  of  Somerset,  containing 
about  fifty  acres.  The  deed  is  executed  under  the  hand  and 
seal,  both  of  the  grantor  and  grantee,  and  contains  the  fol- 
lowing covenant  on  the  part  of  the  grantee :  "  Whenever 
she,  the  said  Phebe  Woodward,  shall  quit  the  actual  occupa- 
tion of  the  foregoing  described  land  and  premises,  she  will 
reconvey  the  same  to  the  said  Ferdinand  Van  Doren  in  fee 
simple,  by  a  good  and  sufficient  deed  of  warranty,  free  and 
clear  of  all  encumbrances  made  or  suffered  by  her,  for  a  fair 
price,  provided  said  Ferdinand  Van  Doren  will  accept  such 
3onveyance  and  pay  such  price;  and  in  case  the  said  Phebe 
Woodward  shall  die  in  possession  of  the  said  land  and  prem- 
ises, she  hereby  further  covenants  with  said  Ferdinand 
Van  Doren,  tliat  her  heirs  or  assigns  shall,  upon  her  death, 
reconvey  said  laud  and  premises  to  him   by  such  deed,  and 


258  CASES  IN  CHANCERY 

Van  Doren  v.  Robinson  et  al. 

upon  such  terras  and  conditions  as  last  aforesaid,  provided 
he  or  they  will  accept  such  deed,  and  pay  such  price  for  said 
land  and  premises."  The  grantee  entered  into  possession  of 
the  premises,  and  continued  in  the  actual  occupation  until 
the  spring  of  1845,  when  she  removed  to  the  city  of  New 
York,  having  leased  the  premises  to  a  tenant  for  one  year. 
On  the  twenty-first  of  October,  1845,  Phebe  Woodward,  by 
deed  of  bargain  and  sale,  conveyed  the  premises  in  fee  to 
James  F.  Robinson,  one  of  the  defendants.  On  the  fifteenth 
of  February,  1847,  James  F.  Robinson  conveyed  the  prem- 
ises in  fee  to  John  H.  Robinson,  who  thereupon  executed  a 
deed  of  trust  in  favor  of  his  mother,  Nancy  Robinson,  by 
whom  the  consideration  money  for  the  conveyance  of  the 
farm  by  Phebe  Woodward,  was  advanced.  Both  Phebe  Wood- 
ward, the  complainant's  grantee,  and  Nancy  Robinson,  in 
whom  the  equitable  estate  in  the  premises  was  vested,  died 
in  the  year  1849.  The  complainant's  bill  was  filed  on  the 
seventeenth  of  April,  1862. 

A  preliminary  objection  is  raised  to  the  bill,  for  want  of 
proper  parties.  Cestui  que  trusts  are  not,  it  seems,  accord- 
ing to  the  modern  rule  in  England,  necessary  parties  to  suits 
against  trustees  to  compel  the  specific  performance  of  con- 
tracts, except  where  some  question  arises  touching  the  power 
of  the  trustees  to  execute  the  contract,  or  their  authority  to 
act  under  it.  Evans  v.  Jachson,  8  8im.  217;  Sanders  v. 
Richards,  2  Collijer  568 ;  Fry  on  Spec.  Perf.,  §  99. 

But  the  bill  in  this  ease  is  not  a  mere  bill  for  specific  per- 
formance. It  is  also  in  the  nature  of  a  bill  of  interpleader, 
and  involves  the  title  of  the  cestui  que  trusts  to  the  property 
in  dispute.  It  is  in  respect  to  that  title,  that  the  defendants 
are  called  upon  to  interplead,  and  the  court  is  asked  to  de- 
cide. The  cestui  que  trusts  are  interested  not  only  in  the 
fund  or  estate  respecting  which  the  question  at  issue  has 
arisen,  but  also  in  that  question  itself.  In  such  case,  the 
cestui  que  trusts  are  necessary  parties.      Calvert  on  Parties  5. 

The  devisees  of  the  land  in  question  under  the  will  of 
Nancy  Robinson,  if  that  will  should  be  established,  as  the 


MAY  TERM,  1863.  259 

Van  Doren  v.  Robinson  et  al. 

bill  assumes  tluit  it   may  be,  would   liave  an  interest  in  the 
event  of  the  saiit. 

If,  therefore,  that  question  slioiild  be  decided,  it  would  be- 
come necessary  to  make  the  cestui  que  trusts  parties,  before 
the  final  determination  of  the  cause. 

But  as  the  case  will  be  disposed  of  upon  other  grounds, 
totally  irrespective  of  the  title  to  the  property,  or  the  rights 
of  the  cestui  que  trusts,  it  cannot  now  with  any  propriety  be 
declared  that  the  bill  is  defective  for  want  of  parties.  The 
objection  was  not  raised  by  demurrer.  An  objection  for 
want  of  proper  parties  taken  at  the  hearing  will  not  prevail, 
unless  such  parties  are  necessary  to  the  final  determination 
of  the  cause. 

It  is  objected  that  the  contract  is  not  such  as  equity  will 
enforce  for  want  of  mutuality.  The  general  principle  is, 
that  where  the  contract  is  incapable  of  being  enforced  against 
one  party,  that  party  is  equally  inca{)able  of  enforcing  it 
against  the  other.     Fry  on  Spec.  Perf.,  §  286. 

But  the  principle  does  not  apply  where  the  contract,  by 
its  terms,  gives  to  one  party  a  right  to  the  performance 
which  it  does  not  give  to  the  other,  as  where  a  lease  contains 
a  covenant  on  the  part  of  the  lessor  for  a  renewal  of  the  lease 
at  the  expiration  of  the  term.  It  is  now  settled  that  such 
covenant  may  be  enforced  against  tiie  lessor,  though  there  is 
no  reciprocal  obligation  on  the  part  of  the  lessee  to  accept  the 
renewal.     F'ry  on  Spec.  Per/.,  §  948. 

In  McKibhin  v.  Brown,  1  McCarter  13,  the  bill  was  filed 
by  the  lessee  to  enforce  the  specific  performance  of  a  cove- 
nant for  renewal.  The  bill  was  open  to  the  objection  now 
urged,  but  it  was  not  suggested  as  a  ground  of  defence,  al- 
though the  case  was  warmly  contested,  both  in  this  court  and 
in  the  Court  of  Appeals. 

The  present  case  falls  directly  within  the  same  principle. 
The  grantee  in  the  deed  covenanted  to  reconvey  whenever 
she  should  quit  the  actual  occupation  of  the  premises,  though 
the  grantor  was  under  no  obligation  to  accept  the  title.  It 
is  in  fact  a  contract  in  which  the  obligation  to  perform  rests 


260  CASES  IN  CHANCERY. 

Van  Doren  v.  Kobinson  et  al. 

upon  one  of  the  parties,  and  which  will  he  enforced  in  equity, 
though  with  great  caution.  Chestennan  v.  Mann,  9  Hare 
206  ;  Allen  v.  Hilton,  1  Fonb.  Eq.  425,  note;  Fry  on  Spec. 
Perf.,  §  291-2,  §  733. 

It  is  farther  objected  that  the  contract  will  not  be  en- 
forced, because  the  price  to  be  paid  for  the  reconveyance  of 
the  land  is  not  ascertained  by  the  contract.  The  agreement 
is  that  the  land  shall  be  reconveyed  for  a /air  ^rice,  if  the 
grantor  will  accept  the  deed  and  pay  such  price. 

It  is  urged  that  the  effect  of  the  agreement  is  simply  to 
give  to  the  vendor  the  refusal  of  the  property,  if  the  parties 
could  agree  upon  tiie  price.  If  such  be  the  effect  of  the  con- 
tract, the  court  will  not  decree  a  specific  performance.  An 
agreement  for  the  sale  of  land,  at  a  price  to  be  ascertained 
by  the  j)arties,  is  too  incomplete  and  uncertain  to  be  carried 
into  execution  by  a  court  of  equity.  Graham  v.  Call,  5 
Munf.  396. 

But  where  the  contract  Is  that  the  land  shall  be  recon- 
veyed, not  at  a  price  to  be  agreed  upon  by  the  parties,  but 
at  a  fair  price,  or  at  a  fair  valuation,  the  court  will  direct  the 
valuation  to  be  made  by  a  master,  and  will  enforce  the  exe- 
cution of  the  contract.  Gaskarth  v.  Lord  Lowther,  12  Ves. 
107  ;  Willcs  V.  Davis,  3  3Ier.  507  ;  Cltij  of  Provldenee  v.  St. 
Johns'  Lodge,  2  Rhode  Lsland  i^.  46  ;  Dike  v.  Greene,  4 
Rhode  Lsland  R.  285 ;  Fnj  on  Spec.  Per/.,  §  219. 

This  class  of  cases  has  given  rise  to  some  conflict  of  opinion, 
and  the  line  which  marks  the  linjits  of  the  court's  exercise 
of  jurisdiction,  is  not  clearly  defined.  The  true  principle 
seems  to  be,  that  whenever  the  price  to  be  paid  can  be  as- 
certained, in  consistency  with  the  terms  of  the  contract,  per- 
formance will  be  enforced.  But  the  court  will  not  make  a 
contract  for  the  parties,  nor  adopt  a  mode  of  ascertaining  the 
price,  not  in  accordance  with  the  real  spirit  of  the  agreement. 
In  this  case,  the  mode  in  which  the  price  shall  be  fixed,  is 
not  designated  in  the  contract.  It  is  required  simply  that  it 
be  a  fair  price.  To  ascertain  that  value,  by  any  mode  of  in- 
vestigation, will  conflict  neither  with  the  letter,  nor  with  the 


MAY  TERM,  1863.  261 

Van  Doren  v.  Robinson  et  al. 

spirit  of  the  contract.  I  tliiiik.  therefore,  the  contract  is  such 
as  will  justify  a  decree  for  specific  performance. 

The  covenant  for  reconveyance  is  sought  to  be  enforced,  not 
against  the  covenantor,  but  against  tiie  alienee  of  the  land. 
The  covenant  is  merely  personal.  It  neither  runs  with  the 
land,  nor  binds  the  alienee  at  law.  It  will  be  enforced  against 
the  alienee,  in  equity,  only  where  he  is  chargeable  with  notice 
of  tlie  original  contract.  Jackson's  case,  5  Vln.  Ab.  543,  §  3; 
Tmjhr  v.  Stibbert,  2  Vesey  437;  Fry  on  Spec.  Per/.,  §  135, 
§137. 

There  is  no  proof  of  actual  notice  to  the  alienee.  At  the 
time  of  the  conveyance  from  Phebe  Woodward,  the  cove- 
nantor, to  James  F.  Robinson,  the  deed  from  the  com})lainant 
to  Phebe  Woodward  was  not  on  record.  There  is  no  evi- 
dence that  Robinson  had  ever  seen  that  deed  before  he  re- 
ceived the  title.  He  denies  that  he  ever  saw  it,  or  that  he 
liad  any  knowledge  whatever  of  the  existence  of  the  covenant, 
at  the  time  of  the  conveyance  to  him.  He  is,  nevertheless, 
chargeable  with  constructive  notice.  All  the  defendants  claim 
title  through  the  deed  from  the  complainant  to  Phebe  Wood- 
ward, which  contains  the  covenant  which  is  sought  to  be  en- 
forced. Notice  of  a  deed  is  notice  of  its  contents.  And  where 
a  purchaser  cannot  make  out  a  title  but  by  a  deed,  which  leads 
him  to  another  f:ict,  he  will  be  deemed  to  have  knowledge  of 
that  fiict.  4  Kent's  Com.  179  ;  2  Sugden  on  Vendors  [lih 
Am.  ed.)  559,  §  63  ;   1  Story's  Eq.,  §  400. 

In  this  aspect  it  is  immaterial  whether  the  deed  was  or  was 
Dot  recorded. 

It  avails  nothing  that  the  defendants  deny  actual  notice. 
Constructive  notice  is  knowledge  imputed  on  presumption, 
too  strong  to  be  rebutted,  that  the  knowledge  must  have  been 
communicated.  1  Story's  Eq.  Jur.y  §  399;  2  Sugden  on  Ven* 
dors  1041,  §  7. 

It  is  further  objected  that,  admitting  the  defendants  to  be 
chargeable  with  notice,  the  complainant  is  not  entitled  to 
relief,  ou  the  ground  that  his  conduct  at  the  time  of  the  sale 


262  CASES  IN  CHANCERY. 

Van  Doren  v.  Eobinson  et  al. 

and  conveyance  to  James  F.  Hobinson,  was  calculated  to  mis- 
lead him  in  regard  to  his  rights  as  a  purchaser. 

By  the  terms  of  the  covenant,  Phebe  Woodward  engaged 
to  reconvey  the  })remises  to  the  complainant  whenever  she 
should  quit  the  actual  occupation  of  the  land  and  premises, 
provided  the  complainant  would  accept  the  conveyance  and 
pay  the  price.  In  the  spring  of  1845  she  left  the  premises 
and  removed  to  the  city  of  New  York.  About  the  first  of 
October  following,  Robinson  called  upon  the  complainant  and. 
viewed  the  premises,  with  the  intention  of  purchasing.  It  is 
obvious,  from  the  evidence  not  only  of  Robinson  but  of  the 
complainant  himself,  that  he  was  aware  of  Mrs.  Woodward's 
desire  to  sell,  and  of  Itobinsou's  intention  to  purchase.  He 
says,  that  from  what  he  understood  from  Robinson,  he  had 
reason  to  believe  that  she  would  sell  without  his  consent.  He 
gave  Robinson  no  intimation  of  his  intention  or  willingness 
to  accept  a  reconveyance.  Immediately  thereafter,  he  had  aa 
interview  with  Mrs.  Woodward,  in  the  city  of  New  York. 
He  made  no  demand  of  a  conveyance ;  gave  no  intimation 
that  he  was  willing  to  accept  it.  The  object  of  his  visit  was 
not  to  protect  his  rights  under  the  covenant,  but  to  obtain 
from  Mrs.  Woodward  the  payment  of  a  debt  which  she  owed 
him.  On  his  return  from  New  York,  without  having  ob- 
tained security  for  his  debt,  he  sued  out  a  writ  of  attachment 
against  Mrs.  Woodward,  as  a  non-resident  debtor,  which  he 
caused  to  be  served  upx)n  the  land  in  question,  before  the  deeci 
to  Robinson  was  executed.  Robinson,  having  obtained  his 
title,  entered  into  possession,  and  while  so  in  possession,  he 
paid  and  satisfied  to  the  auditors  in  attachment,  with  the 
knowledge  and  concurrence  of  the  complainant,  the  debt  for 
which  the  attachment  was  issued,  together  with  the  claims  of 
other  attaching  creditors,  which  had  become  encumbrances  on 
the  land.  The  complainant  not  only  tacitly  assented  to  the 
Bale  and  conveyance  by  Woodward  to  Robinson,  but  he  ac- 
tively participated,  by  receiving  a  part  of  the  purchase  money. 

By  the  terms  of  the  contract,  he  was  as  much  bound  to 


MAY  TERM,  1863.  263 


Van  Doren  v.  Robinson  et  al. 


demand  a  deed,  or  intimate  his  willingness  to  aceept  it,  as  the 
covenantor  was  to  reconvey.  No  deed  could  be  tendered  till 
the  price  was  agreed  upon.  The  obligation  to  convey  was 
inoperative,  unless  he  was  willing  to  accept  the  deed  and  pay 
the  purchase  money.  Yet  he  stood  by  and  permitted  the 
purchaser  to  acquire  title,  to  take  possession  of  the  premises 
and  to  pay  the  purchase  money,  without  an  intimation  of  his 
claim  under  the  covenant,  or  of  his  willingness  to  accept  the 
title  if  it  was  tendered  to  him.  Such  conduct  would  estop  a 
party  from  enforcing  a  legal  title;  with  more  reason  it  oper- 
ate to  de{)rive  a  party  of  all  claim  to  relief  at  the  hands  of 
this  court.  The  conduct  of  the  complainant  operated  as  a 
waiver  of  his  equitable  claim  under  the  covenant,  as  against 
James  F.  Robinson  and  those  claiming  under  him. 

An  equally  decisive  objection  to  the  relief  asked  for,  is  the 
delay  on  the  part  of  the  complainant  in  seeking  to  enforce 
his  claim.  Robinson  acquired  title,  and  entered  into  pos- 
session of  the  premises  in  October,  1845.  The  complainant's 
bill  was  filed  in  April,  1862,  more  than  sixteen  years  after 
the  date  of  the  conveyance.  His  first  formal  notice  of  his 
claim  to  one  of  the  defendants,  was  made  on  the  twenty-first 
of  March,  1861.  There  is  strong  presumptive  evitlence  in 
the  case,  that  until  about  that  period,  he  had  no  intention  or 
desire  to  enforce  his  claim  to  a  conveyance  under  the  stipu- 
lations of  the  covenant.  This  great  delay,  unaccounted  for 
is  a  bar  to  a  claim  for  a  specific  performance  of  the  contract. 
A  party,  in  the  language  of  Lord  Alvanley,  "cannot  call 
upon  a  court  of  equity  for  specific  performance,  unless  he  has 
shown  himself  ready,  desirous,  prompt,  and  eager."  Melward 
v.  Earl  of  Thanet,  5  Vesey  720,  note  h. 

In  the  language  of  Lord  Crauworth,  "specific  performance 
is  relief  which  this  court  will  not  give,  unless  in  cases  where 
the  parties  seeking  it,  come  as  promptly  as  the  nature  of  the 
case  will  permit."  Eads  v.  Williams,  4  De  Gex,  M.  &  G. 
691 ;  Fry  on  Spec.  Per/.,  §  732-3. 

A  bill  lor  specific  performance  is  an  application  to  the  dis- 
cretion, or  rather  to  the  extraordinary  jurisdiction  of  equity, 


264  CASES  IN  CHANCERY. 

Van  Doren  v.  Eobinson  et  al. 

which  cannot  be  exercised  in  favor  of  persons  who  have  long 
slept  upon  their  rights,  and  acquiesced  in  a  title  and  pos- 
session adverse  to  their  claim.  1  Sugden  on  Vendors  289,  § 
3,4,5. 

No  excuse  is  furnished  by  the  facts  set  out  in  the  bill  as 
explanatory  of  the  delay.  Phebe  Woodward  did  not  die  till 
1849,  more  than  three  years  after  Robinson  had  acquired 
title  and  possession  of  the  premises  under  her.  The  subse- 
quent controversy  in  Vermont,  touching  the  validity  of  the 
will  of  Nancy  Robinson,  and  the  conflicting  claims  of  the 
defendants  to  the  premises,  presented  no  obstacle  to  the  com- 
plainant's suit.  The  decision  of  the  question  in  Vermont  did 
not  as  the  complainant  himself  alleges,  conclusively  settle 
tl»e  question  of  title.  The  same  difficulty  as  to  the  title, 
which  is  alleged  as  a  ground  for  the  delay,  continued  to  exist 
when  the  bill  was  filed. 

Nor  is  the  objection  on  the  score  of  delay  waived  by  the 
fact,  that  the  negotiations  for  a  conveyance  were  had  between 
the  parties,  on  the  assumption  of  the  complainant's  claim  to 
a  reconveyance.  There  was  no  admission  by  the  defendants 
of  the  comi)lainant's  right  to  the  conveyance  under  the  cove- 
nant, nor  any  waiver,  express  or  implied,  of  any  defence  to 
such  claim.  The  negotiations  for  the  purchase  were  in  fact 
commenced,  and  the  price  agreed  upon,  before  the  complain- 
ant's claim  to  a  conveyance  was  presented  or  insisted  on.  It 
it  evident,  indeed,  from  the  whole  tenor  of  the  evidence,  and 
especially  from  the  written  correspondence  between  the 
parties,  that  the  complainant's  claim  was  not  set  up,  and 
that  the  bill  was  not  liled,  so  much  for  the  purpose  of  enforc- 
ing a  compliance  with  the  covenant,  as  for  the  sake  of  acquir- 
ing a  satisfactory  title,  and  ascertaining  to  which  of  the  de- 
fendants the  purchase  money  should  be  paid.  The  defendants 
were  willing  to  convey.  The  parties  had  virtually  agreed 
upon  the  price.  The  only  question  was,  to  which  of  the  de- 
fendants the  purchase  money  should  be  paid.  The  bill  was 
evidently  filed  under  an  impression  on  the  part  of  the  solicitor, 
that  the  bill  would  not  be  resisted,  but  that  the  defendants 


MAY  TERM,  1863.  265 


Belford  et  al  v.  Crane  et  ux. 


would  acquiesce  in  a  determination  by  this  court  of  their 
conflicting  ehiims.  That  expectation  proves  not  to  have  been 
well  founded. 

The  bill  must  be  dismissed. 

Cited  in  Brewer  v.  Marshall,  4  C.  E.  Gr.  544 ;  Sweel  v.  Parker,  7  C.  E^ 
Gr.  45G;  Green  v.  Lichards,  8  C.  E.  Gr.  35;  Reynolds  v.  O'Neil,  11  C^, 
E.  Gr.  225. 


George  Belford  and  others,  partners,  &c.,  vs.  Joseph  B. 
Crane  and  wife. 

1.  Where  tlie  cause  is  lieard  upon  bill  and  answer,  llie  answer  must  be 
taken  as  conclusive  proof  of  the  facts  which  it  sets  up  by  way  of  defence. 
But  intentions  and  motives  are  not  facts,  touching  which  the  answer  is 
conchisive. 

2.  Where  a  wife  takes  the  title  to  land,  purchased  with  the  property 
of  the  husband,  under  circumstances  which  render  the  transaction  fraudu- 
lent as  against  the  luisband'g  creditors,  she  will  be  treated  as  a  trustee  for 
the  creditors,  and  the  property  will  be  sold  for  their  benefit. 

3.  The  legal  title  to  land  is  not  aflected  by  a  sheriff's  deed,  where,  at  the 
time  of  the  levy  and  sale,  the  title  was  not  in  the  defendant  in  execution. 

4.  The  existence  of  fraud  is  often  a  presumption  of  law  from  admitted  or 
established  facts,  irrespective  of  motive,  and  too  strong  to  be  rebutted.  A 
voluntary  settlement  on  the  wife  by  a  husband  while  engaged  in  l)usiness, 
and  involved  in  debt,  is  fraudulent  as  against  creditors,  no  matter  how 
pure  the  motive  which  induced  it. 

5.  The  right  of  the  husband  to  the  services  of  his  wife,  and  to  the  avails 
of  her  skill  and  industry,  is  absolute.  The  wife  can  acquire  no  separate 
property  in  her  earnings,  though  she  carry  on  business  in  her  own  name, 
except  by  gift  from  her  husband. 

6.  A  settlement  by  the  husband  upon  the  wife,  in  consideration  of  meri- 
torious services,  is  a  pure  gift  or  voluntary  settlement,  and  though  good  as 
against  the  husband,  can  only  be  sustained  against  his  creditors  by  virtue 
of  an  antenuptial  contract. 

7.  If  a  party  is  indebted  at  the  time  of  a  voluntary  settlement,  it  is  pre- 
sumed to  be  fraudulent  in  respect  to  such  debts,  and  no  circumstances  will 
permit  those  debts  to  be  affected  by  the  settlement,  or  repel  the  legal  pre- 
sumption of  fraud. 

8.  The  distinction  between  existing  and  subsequent  debts,  in  reference  to 
voluntary  conveyances,  is,  that  as  to  tlie  former,  fraud  is  an  inference  of 
law ;  as  to  the  latter,  there  must  be  proof  of  fraud  in  fact. 

9.  The  act  of  1852,  for  the  better  securing  the  property  of  married 


266  CASES  IN  CHANCERY. 


Belford  et  al.  v.  Crane  et  ux. 


women,  confers  upon  the  wife  a  mere  jus  tenvndl.     It  gives  her  no  power 
to  dispose  of  her  property. 

10.  The  hind  having  been  pnrcliased  witli  tlie  money  of  the  hnshand, 
there  is  a  resuhing  trust  in  his  favor.  The  wife  will  be  declared  a  trustee 
for  the  husband,  for  the  benetit  of  his  creditors. 


Vanattn,  for  complainants. 

Pitney,  for  defendants. 

Cases  cited  by  complainants'  counsel.  Reads  v.  Living- 
ston, 3  Johns.  Ch.  R.  497  ;  Cooh  v.  Johnson,  1  Beas.  52  ; 
Satterthwaite  v.  Emley,  3  Greenes  Ch.  R.  489 ;  Townsend  v. 
Westacott,  2  Reavan  340 ;  1  Story's  Eq.  Jar.,  §  353,  §  374  ; 
1  Fonb.  Eq.,  ch.  4,  §  12  ;  3  Sta^-k.  on  Ev.  615,  622  ;  Tumor's 
case,  8  Coke  132,  (262) ;  Bovy's  case,  1  Vent.  194;  Douglasse 
V.  Waad,  1  Chan.  Cases  100;  Holford  v.  Holford,  Ibid.  217; 
Colvilc  V.  Parker,  Cro.  James  158  ;  Evelyn  v.  Templar,  2 
Bro.  Ch.  R.  148;  BurreVs  case,  6  Coke  72;  Gooch's  case,  5 
Co^-e  60;  Doe  v.  Routledge,  Cowper  705,  711  ;  Toivnsend  v. 
Windham,  2  Fesry,  sen.  11;  iV/a;.  Z)?^;.  762,  §  8;  Freeman 
V.  Orser,  5  jDaer  476. 

Cases  cited  by  defendants'  counsel.  3Tegrath  v.  Robertson's 
Adm'7's,  1  7)e.?s.  445  ;  Pinney  v.  Fellows,  15  F/.  525 ;  1  Bright 
on  Husb.  and  Wife,  230,  232. 

The  Chancellor.  The  complainants  having  recovered 
judgment  at  law  against  Joseph  B.  Crane,  caused  an  execu- 
tion to  be  levied  on  certain  real  estate,  the  legal  title  to  which 
was  in  the  wife  of  Crane.  On  the  twenty-fourth  of  June, 
1861,  the  land  was  sold  by  virtue  of  the  execution,  and  the 
complainants  became  the  purchasers,  and  received  a  deed 
from  the  sheriff  in  pursuance  of  the  sale.  The  bill  charges 
that  the  property  was  in  fact,  the  property  of  the  husband, 
but  that  the  title  was  vested  in  the  wife,  for  the  purpose  of 
defrauding  the  husband's  creditors.     The  prayer  of  the  bill 


MAY  TERM,  1863.  2G7 

Belford  et  al.  v.  Crane  et  ux. 

is,  that  the  deed  to  the  wife  be  declared  void,  and  that  she  be 
decreed  to  convey  her  title  to  the  complainants,  or  that  the 
property  be  sold  nnder  the  order  of  the  conrt,  to  satisfy  the 
claim  of  the  complainants  against  the  husband. 

The  case  is  heard  upon  bill  and  answer,  and  the  right  rests 
upon  the  admissions  and  allegations  of  the  answer,  which 
must  be  taken  as  conclusive  proof  of  the  fads  which  it  sets 
up  by  way  of  defence.     Lubc^s  Eg.  PL  109. 

The  answer  admits  the  judgment  of  the  complainants  ;  the 
levy  upon  the  real  estate  standing  in  the  name  of  the  wife, 
and  the  sale  and  conveyance  to  the  complainants.  It  also 
admits  that  at  tlje  time  of  the  marriage  of  the  defendants, 
the  wife  was  not  possessed  of  any  property,  real  or  personal, 
and  that  she  has  not  received,  by  descent,  devise,  or  gift, 
from  any  person  since  her  marriage,  any  property  whatever. 
It  avers  that  the  wife  was  a  tailoress,  and  that,  by  her  labor 
and  exertions  as  a  tailoress,  in  addition  to  her  ordinary 
liousehold  duties,  and  by  keeping  boarders,  during  a  course 
of  years,  she  earned  a  large  sum  of  money,  amounting,  as  the 
defendants  believe,  to  about  one  thousand  dollars;  that  the 
real  estate  in  question  was  purchased  in  the  years  1857  and 
1858,  and  the  title  taken  in  the  name  of  the  wife.  That  at 
the  time  of  the  purchase,  the  defendant,  Joseph  B.  Crane, 
was  indebted  upon  his  mortgages  and  notes  given  for  the  pur- 
chase of  real  estate,  for  his  current  coal  bills,  bought  on  the 
usual  credit  for  the  purposes  of  his  business,  and  for  his 
family  expenses  ;  and  that  all  the  debts  then  due,  except 
about  $275,  have  been  paid  and  satisfied,  as  the  same  matured. 
The  defendants  admit  that  when  the  land  was  purchased  the 
liusband  expected  to  continue  in  business,  but  deny  that  he 
intended  to  contract  any  new  indebtedness,  except  in  the 
ordinary  course  of  his  business.  They  also  deny  that  the 
title  was  taken  in  the  name  of  tiie  wife  to  hinder  and  delay 
creditors,  or  with  any  expectation  of  insolvency.  In  the  fall 
of  1858  and  in  the  spring  of  1859,  a  house  was  erected  upon 
the  land  at  a  cost  of  $1700,  of  which  $700  was  paid  and 
§1000  raised  by  mortgage  upon  the  property.     In  the  year 


268  CASES  IN  CHANCERY. 

Bel  ford  et  al.  v.  Crane  et  ux. 

1859,  the  business  of  the  luisband  having  been  much  enlarged, 
proved  dis:istrous,  and  he  was  unable  to  meet  his  engage- 
ments and  became  insolvent.  In  1860,  a  judgment  having 
been  recovered  against  him,  tlie  land  which  had  been  con- 
veyed to  the  wife  was  levied  upon  and  sold  as  the  property 
of  the  husband,  and  was  struck  off  and  conveyed  to  the  at- 
torney of  the  plaintiffs  in  execution  for  the  sum  of  $5.  On 
the  ninth  of  October,  1860,  the  land  was  again  conveyed  to 
the  wife  for  the  consideration  of  $400,  the  husband  having 
negotiated  the  purchase  in  behalf  of  the  wife.  Three  hun- 
dred dollars  of  the  purchase  money  was  raised  by  a  mortgage 
on  the  premises,  and  the  balance  was  paid  -out  of  the  funds 
of  a  third  party,  in  the  hands  of  the  wife,  and  was  also  after- 
wards secured  by  mortgage  on  the  property. 

The  fact  that  the  legal  title  to  the  land  was  never  in  the 
husband  cannot  affect  the  substantial  question  at  issue, 
though  it  may  affect  the  mode  of  redress.  If  the  property, 
vested  in  the  wife,  was  purchased  with  the  property  of  the 
husband,  under  circumstances  which  render  the  transaction 
fraudulent  as  against  the  husband's  creditors,  the  wife  will  be 
treated  as  a  trustee  for  the  creditors,  and  the  property  sold  for 
their  benefit. 

Nor  can  the  question  at  issue  be  materially  affected. by  the 
sale  of  the  property  under  execution  against  the  husband, 
and  its  subsequent  conveyance  to  the  wite.  She  paid  not 
one  dollar  consideration  fur  the  reconveyance  to  herself,  out 
of  any  funds  of  her  own.  The  entire  consideration  was  raised 
by  mortgage  upon  the  premises,  leaving  both  the  legal  and 
the  equitable  title  unaffected,  save  that  the  property  was 
charged  with  an  additional  encumbrance.  The  wife  acquired 
no  lesfal  title  whatever  under  the  deed  from  the  sheriff's 
grantee.  The  legal  title,  at  the  time  of  the  levy  and  sale  by 
the  sheriff,  was  not,  and  never  had  been  in  the  defendant  in 
execution.  The  sheriff's  deed,  therefore,  could  not  affect  the 
legal  title.  All  that  it  could  effect,  and  probably  all  that 
it  was  designed  to  effect,  was  to  lay  the  foundation  for  pro- 
ceeding in  equity. 


MAY  TERM,  18G3.  2{?n 


Belford  et  al.  v.  Crane  et  ux. 


Tlie  whole  controversy  turns  upon  the  validity  of  the 
transfer  of  the  property  from  the  husband  to  the  wife.  The 
case,  as  it  appears  from  the  answer  of  the  defendants,  is,  that 
about  the  year  ISoG,  Joseph  B.  Crane,  the  husband,  being  a 
man  of  limited  means,  embarked  in  the  business  of  buying 
and  selling  coal.  A  considerable  portion  of  his  property  was 
ia  real  estate,  and  he  resorted  to  loans  for  the  purpose  of 
carrying  on  his  business.  The  wife,  at  the  time  of  her  mar- 
riage, had  ho  property  whatever.  She  has  never  since  re- 
ceived any  by  descent,  devise,  or  bequest.  All  the  proj)erty 
since  vested  in  her,  has  been  purchased  with  means  which 
belono;ed  to  her  husband.  When  he  commenced  business, 
the  whole  real  estate  of  the  husband  was  in  his  own  name. 
Soon  afterwards,  while  his  real  estate  was  subject  to  mort- 
gage and  he  was  carrying  on  busine.-s  uj)on  borrowed  capital, 
the  real  estate  owned  by  the  husband  was  sold,  and  the  land 
in  question  was  purcliased  and  the  title  taken  in  the  name  of 
his  wife.  Tiie  land  was  purchased  in  the  years  1857  and 
1858,  at  a  cost  of  $750.  In  the  fall  of  1858  and  in  the  spring 
of  1859,  a  house  was  erected  upon  the  premises  at  a  cost  of 
$1700,  making  the  total  cost  of  the  property  $2450.  So  far 
as  can  be  learned  from  the  answer,  that  exceeded  the  whole 
amount  of  property  ever  owned  by  the  husband,  clear  of  debts. 
The  answer  does  not  show  that  he  ever,  while  in  business, 
was  possessed  of  $2000,  clear  estate.  In  the  summer  of  1858, 
about  the  time  he  commenced  building,  he  sustained  a  serious 
loss,  and  in  the  fall  of  1859,  within  six  months  after  his  house 
was  finished,  he  was  unable  to  pay  his  debts,  and,  in  the  lan- 
guage of  the  answer,  "  went  to  protest."  Thereupon  the 
business  was  carried  on  in  the  name  of  the  wife,  the  coal 
being  purchased  by  a  third  party,  and  the  husband,  as  the 
agent  of  the  wife,  retailing  the  coal  and  accounting  for  t!ie 
proceeds  to  the  purchaser,  or  applying  it  in  payment  of  the 
notes.  In  the  spring  of  1856,  when  the  husband  commenced 
business,  he  had  been  married  fifteen  years.  There  was  no 
antenuptial  or  postnuptial  settlement,  or  agreement  for  set- 
tlement on  the  wife.     The  whole  property  stood  in  the  name 

Vol.  I.  •  e 


2/0  CASES  IN  CHANCERY. 

Belford  el  al.  v.  Crane  et  ux. 

of  the  hnsbaiul.  In  1857  he  commenced  the  transfer  of  his 
property  to  his  wife,  and  by  the  spring  of  1859,  while  the 
husband  was  atill  engao-ed  in  business  and  extendiii":  his 
operations,  every  vestige  of  property  that  lie  owned  was  ia 
tlie  name  of  his  wife.  The  transfer  was  not  made  by  a  deed 
of  settlement.  There  was  no  declaration  of  a  purpose  by  the 
husband  to  appropriate  a  specific  portion  of  his  j)r()perty  for 
the  use  of  the  wife,  but  the  property,  from  time  to  time,  was 
purchased  in  the  name  of  the  wife,  and  a  house  suixsequently 
erected  thereon  with  the  means  of  the  husband.  That  pro- 
perty the  husband  continued  to  use  and  enjoy  after  the 
ehauge  of  title  as  fully  as  he  had  done  before.  The  only 
substantial  change  was,  that  it  was  [>laced  beyond  the  reach 
of  his  creditors.  It  is  very  difficult,  on  a  simple  view  of  the 
facts  presented  by  the  answer,  to  resist  the  imj)ression  that 
this  whole  arrangement  was  made  for  the  purpose  of  placing 
the  property  of  the  husband  beyond  the  reach  of  the  hus- 
band's creditors.  It  is  true  the  answer  denies  the  fraudulent 
intent  or  motive,  but  intentions  and  motives  are  not  fads, 
touching  which  the  answer  is  conclusive.  Cook  v.  Johnson, 
1  Beas.  53. 

The  existence  of  fraud  is  often  a  presumption  of  law  from 
admitted  or  established  facts,  irrespective  of  motive,  and  too 
strony;  to  be  rebutted.  A  voluntarv  settlement  on  the  wife 
by  a  husband  while  engaged  in  business  and  involved  in  debt, 
is  fraudulent  as  against  creditors,  no  matter  how  pure  the 
motive  which  induced  it. 

It  is  urged  that  the  transfer  of  the  property  to  the  wife 
will  be  sustained  in  equity,  because  it  was  purchased  in  part 
with  the  avails  of  the  wife's  labor.  Both  at  common  law 
and  in  equity,  the  husband  is  entitled  not  only  to  the  per- 
sonal [)roi)erty  which  the  wife  owns  at  the  time  of  her  mar- 
riage, but  to  all  that  she  acquires  by  her  skill  or  labor  during 
coverture.  His  right  to  her  services  and  to  the  avails  of  her 
skill  and  industry,  is  absolute.  The  wife  can  acquire  no  sepa- 
rate property  in  her  earnings,  except  by  gift  from  her  hus- 
band.    Even  where  she  carries  on  business  in  her  own  name 


MAY  TERM,  1863.  271 


Belford  et  al.  v.  Crane  et  vii 


the  avails  of  the  business  are  the  property  of  the  husband. 
Tills  subject  was  considered  and  decided  in  SkUlman  v.  Skill- 
man,  2  Bcdii.  403,  wliere  many  of  the  authorities  will  be 
found.  That  decision  has  since  been  affirmed  by  the  Court 
of  Appeals. 

The  answer  contains  no  averment  of  a  settlement  of  the 
husband  on  the  wife  in  consideration  of  her  meritorious  ser- 
vices, or  of  a  gift  to  her  of  the  avails  of  her  labor.  The  de- 
fendants, on  the  contrary,  admit  that  no  part  of  the  money 
invested  in  said  house  and  lots  was  furnished  by  the  wife, 
but  they  allege  that  it  was  the  proceeds  of  the  joint  labor  of 
the  defendants  in  former  years,  and  from  the  increase  in 
value  of  the  real  estate  purchased  by  the  proceeds  of  such 
joint  labor.  Tliey  further  allege  that  no  account  was  kept 
of  the  earnings  of  the  wife,  nor  were  they  kept  separately, 
but  they  were  united  with  the  earnings  of  the  husband,  and 
the  surplus,  after  defraying  the  ex[)enses  of  the  family,  we're 
laid  up  and  invested  by  the  husband.  These  facts  prove  in- 
controvertibly  that  the  land  was  purchased  with  the  jiroperty 
of  tlie  husband  and  the  title  taken  in  the  name  of  the  wife. 
There  is  no  allegation  that  the  conveyance  was  designed  as  a 
postnuptial  settlement  upon  the  wife,  or  as  a  gift  to  her  for 
her  services.  The  frame  of  the  answer  excludes  such  an  in- 
ference. The  wife  claims  the  property,  not  as  the  gift  of  her 
husband,  but  as  an  equitable  recompense  for  meritorious  ser- 
vices. 

But  if  the  answer  had  alleged  a  settlement  by  the  husband 
in  consideration  of  those  services,  it  was  a  j)urc  gift  or  vol- 
untary settlement,  antl  though  gooil  as  against  the  husband, 
could  only  l)e  sustained  against  the  creditors  by  virtue  of  an 
antenuptial   contract.      Ciancij  on  Hnsb.  and  Wife  27G,  277. 

In  regard  to  antecedent  creditors,  tiiere  seems  no  room  for 
question  as  to  the  invalidity  of  the  title.  The  doctrine,  as 
stated  l)y  ChanceHor  Kent  and  adopted  by  this  court,  is,  that 
**  if  the  party  is  indebted  at  the  time  of  the  voluntary  settle- 
ment, it  is  presumed  to  be  fraudulent  in  respect  to  such  debts, 
and   no  circumstances  will   permit  those  debts  to  be  affected 


272  CASES  IN  CHANCERY. 

Belford  et  al.  v.  Crane  et  ux. 

by  the  settlement,  or  repeal  the  legal  presumption  of  fraud/* 
Meade  v.  Livingston,  3  Johns.  Ch.  H.  500 ;  Cook  v.  Johnson^ 
1  JBeas.  54. 

The  distinction  between  existing  and  subsequent  debts,  in 
reference  to  voluntary  conveyances,  is,  that  as  to  the  former, 
fraud  is  an  inference  of  law  ;  but  as  to  subsequent  debts, 
there  is  no  such  necessary  legal  presumption,  and  there  must 
be  proof  of  fraud  in  fact.  Meade  v.  Livingston,  3  Johns.  Ch. 
R.  497,602;  Cooky.  Johnson,  1  Leas.  5^. 

I  think  the  facts  of  this  case,  as  disclosed  by  the  answer, 
leave  no  reasonable  room  for  doubt  that  the  vesting  of  the 
property  in  the  wife  was  effected  in  contemplation  of  present 
and  future  indebtedness,  and  with  the  view  to  hinder,  delay, 
and  defraud  creditors. 

Independent  of  all  other  badges  of  fraud,  the  large  amount 
settled  on  the  wife,  considered  in  relation  to  the  husband's 
means,  is  in  itself  a  very  unusual  and  suspicious  circum- 
stance. A  settlement  honestly  made  always  has  relation  to 
the  husband's  pecuniary  ability.  In  Beard  v.  Beard,  ^  Atk. 
72,  Lord  Hardwicke  said  :  "  A  court  of  equity  will  not  suffer 
the  wife  to  have  the  whole  of  the  husband's  estate  while  he 
is  living,  for  it  is  not  in  the  nature  of  a  provision,  which  is 
all  the  wife  is  entitled  to." 

Courts  have  manifested  a  strong  disposition,  and  very  pro- 
perly, to  protect  bona  fide  settlements  made  by  a  husband  in 
favor  of  a  wife.  But  it  is  material  to  bear  in  mind  that  here 
is  no  settlement  by  the  husband  for  the  separate  use  of  the 
wife.  The  absolute  interest  in  and  control  over  the  property, 
to  the  entire  exclusion  of  the  husband,  is  not  vested  in  tbo 
wife,  as  it  would  be  in  case  of  a  conveyance  to  trustees  for 
her  use.  Independent  of  the  statute  of  3  852,  for  the  better 
securing  the  property  of  married  women,  the  husband  would 
have  a  right  to  the  income  of  the  property  during  the  lifo 
of  the  wife,  and  on  her  death  he  would  become  tenant  by  the 
curtesy.  And  notwithstanding  the  statute,  the  wife  has  no 
power  to  dispose  of  her  {)roperty.  The  statute  confers  on 
her  merely  the  jus  tenendi.     She  can   neither  alien   nor  de- 


MAY  TERM,  1863.  273 

vise  it.  She  holds  it  really  for  the  benefit  of  her  husband 
during  his  life,  and  for  his  children  upon  her  death.  He 
cannot  be  ejected  by  the  wife.  In  the  language  of  Mr.  Jus- 
tice Vredenburgh,  "he  is  entitled  to  live  in  her  house  and  to 
cat  at  her  table."  Upon  her  death  he  becomes  the  owner  of 
the  property  for  life,  as  tenant  by  the  curtesy.  Naylor  v. 
Field,  5  Datcher  287 ;  Johnson  v.  Cuimniiis,  Februarij  T., 
2863.  He  has,  for  all  practical  purposes,  as  full  enjoyment 
of  the  property  for  his  lil'e,  as  he  would  have  if  the  legal  title 
were  in  himself,  save  only  that  he  cannot  alien  or  encumber 
it.  The  essential  difference  is,  that  while  the  title  is  in  the 
wife  it  is  beyond  the  reach  of  the  husband's  creditors.  Such 
a' transaction  is  in  itself  calculated  to  awaken  suspicion  and 
challenge  investigation.  It  affords  an  easy  and  convenient; 
cloak  for  fraud,  with  little  inconvenience  to  the  husband, 
while  the  title  remains  in  the  wife,  and  equal  facility  for  re- 
storing the  title  to  the  husband  the  moment  the  claims  of 
creditors  are  compromised.  It  fiu-nisiies  no  adequate  pro- 
tection to  the  rights  of  the  wife  against  the  unscrupulous 
im(K)rtunities  of  the  husband.  Such  a  transaction  has,  in 
my  judgment,  but  little  claim  to  the  favorable  consideration 
of  a  court  of  equity. 

The  complainant  is  entitled  to  relief  The  land  having 
been  purchased  with  the  money  of  the  husband,  there  is  a 
resulting  trust  in  his  favor.  The  wife  will  be  declared  a 
trustee  for  the  husband,  ft)r  the  benefit  of  the  creditors. 
I'he  precise  form  of  relief  will  be  best  settled  when  the  de- 
fendants, who  hold  encumbrances  created  by  the  wife,  shall 
have  been  heard.  As  at  present  advised,  I  thiidc  the  proper 
mode  of  relief  would  be  to  (lire(;t  the  property  to  be  sold, 
and  the  proceeds  applied,  after  satisfying  cncun.ibrances,  to 
the  payment  of  the  complainant's  claim. 

No  actual  fraud  is  imputed  to  the  wife.  Her  interest  in 
the  proi>erty,  as  against  the  husband's  creditors,  will  be  se- 
cured to  her  to  the  extent  of  the  value  of  lu-r  dower,  in  case 
the  title  had  been  vested  in  the  husband,  subject,  however,  to 
encumbrances  created  voluntarily  by  herself. 

Cited  in  Smith  v.  Yreclavd,  1  C.  E.  Gr.  201  ;  Cramer  v.  Beford,  2  C.  E. 
Gr.  380;  Van  Kenrcn  v.  McLaur/lilin,  4  C.  E.  Gr.  193;  V/huicr  & 
Green  v.  Kirlland,  S  C.  E.  Gr.  21  ;  Aniiin  v.  Annin,  9  C.  E.  Gr.  194; 


274  CASES  IN  CHANCERY. 

Clinton  Station  Mj'ij.  Co.  v.  Hummel,  10  C.  E.  Gr.  47 ;  Curpoiter  v. 
Carpenter,  10  C.  E.  Gr.  197;  Persons  v.  Persons,  10  C\  £".  Gr.  259; 
Carpenter  v.  Carpenter's  Ex'rs,  12  C.  E.  Gr.  503. 


Jacob  Miller  ??.s.  Elizabeth  L.  Gregory. 

1.  A  defendant  cannot  pray  anything  In  his  answer  but  to  be  dismissed 
the  court.  li"  he  has  any  relief  to  pray,  or  discovery  to  seek  against  the 
tompiainant,  he  must  do  so  by  cross-bilL 

2.  An  answer  to  a  bill  to  foreclose  cannot  draw  in  question  the  fairness 
and  validity  of  a  sale,  the  purchase  money  whereof  the  mortgage  was 
given  to  secure,  or  impeach  the  contract  on  which  the  title  of  the  mort- 
gagor is  foundcid.  Tliese  matters  can  only  be  drawn  in  question  by  cross- 
bill. 


Ogden,  for  complaiuant. 
Fleming,  for  defendant. 

The  Chaxcellor.  The  defence  which  the  defendant  seeks 
to  set  up  by  lier  answer,  can  only  be  made  available  by  cross- 
bill. A  defendant  cannot  jiray  anything  in  his  answer  but 
to  be  dismissed  the  court.  If  he  has  any  relief  to  pray,  or 
discovery  to  seek  against  the  complainant,  he  must  do  so  by 
cross-bill.     Lube's  Eq.  PL  55,  142 ;  3  DankWs  Ch.  Pr.  1742. 

There  are,  it  is  true,  general  allegations  in  the  answer  that 
nothing  is  due  upon  the  complainant's  mortgage,  and  that 
it  was  obtained  by  false  and  fraudulent  representations.  But 
the  substance  of  the  defence  is,  that  the  defendant  was  fraudu- 
lently induced  to  become  the  })urchaser  of  the  mortgaged 
premises  from  the  complainant  at  a  price  beyond  its  real 
value,  and  to  give  the  mortgage  now  sought  to  be  foreclosed 
to  the  complainant,  for  a  portion  of  the  purchase  money. 
It  draws  in  question  the  fairness  and  validity  of  the  sale 
made  by  the  complainant  to  the  defendant,  and  seeks  to  im- 
peach the  contract  on  which  the  title  is  founded.  These 
matters,  if  available  at  all  as  a  defence  to  this  suit,  can  only 
be  drawn  in  question  l)y  cross-bill.  The  complainant  is  en- 
titled to  the  benefit  of  his  answer  to  these  charges  of  fraud. 

But  admitting  the  defence  to  be  available,  it  is  not  sus- 
tained by  the  evidence.    The  material  averments  upon  which 


MAY  TERM,  1863.  275 

Moores  v.  Moores. 

the  defendant  relies  to  sustain  the  defence,  consist  of  new 
matter,  not  responsive  to  the  bill.  Of  the  truth  of  these 
averments  the  answer  is  no  proof.  They  must  be  established 
by  evidence.  Neville  v.  Demeritt,  1  Greenes  Ch.  li.  335 ; 
Fisler  V.  Porch,  2  StoeJcL  248 ;  Stevens  v.  Post,  1  Beas.  408. 
There  is  a  total  failure  of  proof  to  sustain  the  case  pre- 
sented by  the  answer.  All  that  the  proof  establishes  is,  that 
the  defendant  paid  too  high  a  price  for  the  land.  There  is 
no  satisfactory  proof  of  fraud,  or  of  such  abuse  of  confidence 
as  will  entitle  the  defendant  to  relief  in  equity  against  the 
mortgage. 

Cited  in  Graham  v.  Berryman,  4  C.  E.  Gr.  34 ;  Hill  v.  Davison,  5  C. 
E.  Gr.  229  ;  O'Brien  v.  Hidjish,  7  C.  E.  Gr.  AIQ;  Allen's  Ex'rs  v.  EoU, 
10  a  E.  Gr.  166. 


Israel  W.  Moores  vs.  Mary  E.  Moores. 

1.  An  .answer  to  a  bill  for  divorce  on  the  ground  of  desertion,  which  seta 
cp  as  ^  defence  a  general  and  vague  charge  of  cruelty  on  the  part  of  the 
husband,  without  specifying  any  act  of  cruelty,  or  making  any  statement 
from  which  it  can  be  discovered  in  what  the  cruelty  consisted,  is  radically 
defective. 

2.  The  defendant  is  bound  to  state  in  his  answer  all  thecircumstance.4  of 
which  he  intends  to  avail  himself  by  way  of  defence,  and  to  apprise  the 
complainant  in  a  clear  and  unambiguous  manner,  of  the  nature  of  the  case 
he  intends  to  set  up. 

3.  Evidence  must  be  confine<l  to  the  issue  made  by  the  pleadings",  and  all 
evidence  in  support  of  totally  distinct  focts  from  those  relied  upon  in  the 
bill  or  answer,  is  irrelevant,  impertinent,  and  inadmissible. 

4.  Under  general  allegations  particular  instances  may  be  proved,  but  in 
Buch  cases  the  general  charge  must  be  of  such  precise  and  definite  character, 
as  to  apprise  the  adverse  party  of  the  nature  of  the  evidence  to  be  intro- 
duced. 

5.  A  court  of  equity  will  not  deprive  a  defendant  of  his  defence  upon  a 
mere  technicality  of  pleading,  when  its  admission  affects  prejudicially  no 
right  of  the  complainant. 

6.  The  conduct  which  will  justify  the  wife  in  abandoning  her  husband, 
must  be  such"  as  would  constitute  a  ground  for  divorce  or  alimony. 

7.  The  mere  separation  of  husband  and  wife  does  not  constitute  desertion 
within  the  meaning  of  the  statute.  To  constitute  desertion,  the  wife  must 
absent  herself  from  her  husband  on  her  own  accord,  without  his  consent 
and  against  his  will. 


276  CASES  IN  CHANCERY. 

Moores  v.  Moores. 

8.  A  bill  will  not  lie  for  divorce  on  the  ground  of  desertion,  where  the 
parties  are  living  apart  under  articles  of  separation  or  by  mutual  agree- 
ment, and  where  the  party  seeking  it  has  not  expressed  a  desire  to  termi- 
nate the  agreement. 

9.  A  voluntary  agreement  between  husband  and  wife  to  live  separate, 
constitutes  no  bar  to  an  action,  by  either  of  the  parties,  for  a  restitution  of 
martial  rights.  Nor  does  it  operate  in  the  eye  of  the  law,  as  a  release  of 
either  of  the  parties  from  their  matrimonial  obligations. 


R.  S.  Green,  for  complainant. 
Shafer,  for  defendant. 

The  Chancellor.  The  complainant  asks  a  divorce  from 
his  wife  on  the  ground  of  desertion.  The  parties  were  mar- 
ried on  the  second  of  January,  J  856.  On  the  thirteenth  of 
December,  1856,  the  defendant  left  her  home  without  the 
knowledge  or  consent  of  her  husband,  refused  to  return,  and 
has  since  lived  separate  and  apart  from  him.  These  facts 
are  not  disputed. 

The  first  ground  of  defence  presented  by  the  answer,  is 
that  the  defendant  was  compelled  to  leave  her  husband  "  be- 
cause of  his  cruel  conduct  towards  her;"  that  "his  conduct 
was  so  cruel  that  she  could  not  live  with  him."  There  is  no 
specification  of  any  act  of  cruelty,  nor  any  statement  from 
which  it  can  even  be  discovered  in  what  the  cruelty  consisted. 
The  answer  upon  this  ground  was  open  to  exception  for  in- 
sufficiency. But  the  defendant  having  taking  issue  u{X)n  the 
answer,  it  becomes  a  material  question  whether  the  cruelty 
of  the  complainant  is  properly  put  in  issue  by  the  pleadings, 
and  consequently,  whether  the  whole  evidence  upon  this  point 
jshould  not  be  overruled  as  impertinent. 

It  is  a  familiar  principle  that  evidence  must  be  confined  to 
ithe  issue  made  by  the  pleadings.  All  evidence,  therefore,  in 
rsupport  of  totally  distinct  facts  from  those  relied  upon  in  the 
ibill  or  answer,  is  irrelevant,  impertinent,  and  inadmissible. 
Whaley  v.  Norton^  1  Vern.  484  ;  Clarke  v.  Tinion,  1 1  Vesey 
240;  Smith  v.   Clarice,   12  Vesey  477;   Blalce  v.  iUamell,2 


MAY  TERM,  1863.  277 

Moorea  v.  Moores. 

Ball  &  B.  47 ;  Stanley  v.  Robinson,  1  Euss.  &  31.  527  ; 
James  v.  McKernon,  6  Johns.  R.  513  ;  Chandler  v.  Ilerrick, 
3  StQckt.  497  ;   Gresleys  Eq.  Ev.,  [ed.  1837)  159,  161. 

But  the  defendant  does  not  attempt  to  introduce  a  totally 
distinct  defence  froni  that  relied  upon  in  her  answer.  The 
husband's  cruelty  is  alleged  in  the  answer  as  a  ground  of  de- 
fence. The  real  question  is,  whether,  under  that  vague  and 
general  allegation,  the  defendant  shall  be  permitted  to  give 
evidence  of  the  facts  relied  upon  in  support  of  the  charge. 
Under  general  allegations,  jiarticular  instances  may  be 
proved.  Thus,  under  a  charge  of  insanity,  drunkenness,  or 
lewdness,  particular  acts  may  be  shown.  Grcsley^s  Eq.  Ev., 
161. 

In  these  cases,  the  general  charge  is  of  a  precise  and  definite 
character,  which  apjirises  the  adverse  party  of  the  nature  of 
the  evidence  to  be  intrpdnccd.  But  under  a  general  allega- 
tion that  the  complainant  "  had  withdrawn  herself  from  her 
husband,  lived  separately  from  him,  and  very  much  misbe- 
haved herself,"  or  that  "ohe  did  not  behave  with  that  duty 
and  affection  that  became  a  virtuous  woman,  much  less  this 
defendant's  wife,"  adultery  is  not  put  in  issue,  and  evidence 
of  particular  acts  cannot  be  given.  Sldnej/  v.  Sidney,  3  P. 
W.  269  ;  Donendle  v.  Doneraile,  Buller's  N.  P.  296. 

The  general  cliarge  of  cruelty  is  of  the  most  vague  and 
indefinite  character.  It  may  consist  of  acts  of  omission  or 
of  commission  ;  of  acts  in  themselves  lawful  or  unlawful.  Its 
operation  upon  the  party  aggrieved,  may  either  be  corporeal 
or  merely  mental.  Adultery  by  the  husband  is  the  grossest 
cruelty  that  can  be  inflicted  upon  a  wife  ;  and  yet  it  will  not 
be  pretended  that  evidence  of  acts  of  adultery  could  be  given 
in  evidence  under  a  general  charge  of  cruelty.  Nor  does 
(he  objection  consist  in  the  mere  fact  that  adultery  is  in 
itself  a  distinct  offence.  It  consists  also  in  this  further  fjiet, 
that  the  charge  does  not  apprise  the  adversary  of  the  nature 
of  the  evidence  designed  to  be  offered.  It  is  not  evidence  in 
support  of  the  charge  of  cruelty.  The  charge  of  cruelty  made 
against  the  husbaud,  is  highly  penal  in  its  character,  involving 


278  CASES  IN  CHANCERY. 

Moores  v.  Moorea. 

a  forfeiture  of  his  marital  rights.  The  offence  for  which  he 
niiglit  have  incurred  such  a  penalty,  ought  (in  the  language  of 
Lord  Chancellor  Talbot)  to  be  plainly  laid  to  his  charge,  spe- 
cified, and   put  in   issue.     Sidney  v.  Sidney,  3  P.  Wms.  276. 

Now  the  acts  complained  of  were  not  in  themselves  un- 
lawful. They  savored  in  no  wise  of  cruelty.  The  cruelty, 
if  it  exist,  consists  in  facts  and  circumstances  entirely  inde- 
pendent of  and  collateral  to  the  acts  of  the  husband,  which 
are  not  stated  or  suggoste»d  in  the  answer.  How,  then,  was 
the  complainant  to  know  or  suspect  that  these  acts  were  to 
be  oiFered  in  evidence  under  the  general  charge  of  cruelty? 
As  a  pleading,  the  answer  is  radically  defective.  The  de- 
fendant, besides  answering  the  complainant's  case,  is  bound 
to  state  in  liis  answer  all  the  circumstances  of  which  he  in- 
tends to  avail  himself  by  way  of  defence.  He  is  bound  to 
apprise  the  complainant  of  the  nature  of  the  case  he  intends 
to  set  up,  and  that  too  in  a  clear  and  unambiguous  manner. 
2  DonieWs  Ch.  Prac.  814. 

"  The  good  sense  of  pleading,  and  the  language  of  the 
books,  (says  Chancellor  Kent)  both  require,  that  every  ma- 
terial allegation  of  this  kind  should  be  put  in  issue  by  the 
pleadings,  so  that  the  })arties  may  be  duly  apprised  of  the 
essential  inquiry,  and  may  be  enabled  to  collect  testimony 
and  frame  interrogatories  in  order  to  meet  the  question. 
Without  the  observance  of  this  rule,  the  use  of  jileading 
becomes  lost,  and  parties  may  be  taken  at  the  hearing  by 
surprise."     James  v.  McKernon,  6  Johns.  R.  564. 

As  a  matter  of  principle,,!,  deem  the  evidence  upon  this 
part  of  the  defendant's  case  not  admissible  under  the  plead- 
ings, and  if  its  admission  affected  prejudicially  any  right  of 
the  complainant,  it  should  be  rejected  as  irrelevant. 

But  it  is  not  suggested  that  the  introduction  of  the  evidence 
in  this  case,  operated  in  any  wise  as  a  sur[)rise  upon  the  com- 
plainant. It  was  not  objected  to  before  the  master.  The 
complainant  had  a  full  o|)portunity  of  meeting  it.  No  evi- 
dence on  his  part  was  withheld  on  the  ground  that  the  facts 
proved  were  not  within  the  issue.   Under  these  circumstances 


MAY  TERM,  1863.  270 

Moores  v.  Moores. 

I  fun  iitiwilHng  to  deprive  the  defendant  of  her  defence  upon 
a  mere  technicality.  This  wouhl  not  be  in  accordance  with 
the  practice  of  the  court.  Chandler  v.  Herrick,  3  Slockt.  499. 
As  the  evidence  is  fully  before  the  court,  it  is  for  the  interest 
of  both  parties  that  an  opinion  should  now  be  expressed  upoa 
its  merits. 

The  alleged  cruelty  is  thus  stated  by  the  defendant  herself. 
"  I  left  my  husband  on  account  of  his  cruel  treatment  in  bed. 
His  intercourse  with  me  was  so  often  and  so  persisting  that. 
I  could  not  stand  it.  That  was  the  sole  cause  of  my  ever 
leaving  hiuK  The  treatment  I  speak  of  affected  my  health. 
My  husband's  general  treatment  of  me  was  kind  and  atten- 
tive. I  had  no  cause  of  complaint  as  to  his  general  treatment 
of  me."  This  is  the  substance  of  the  defence.  There  is  rea- 
son to  apprehend  from  the  evidence  that  the  sickness,  of  which 
the  defendant  complained,  resulted  mainly  from  her  preg- 
nancy, and  that  her  desertion  of  her  husband  arose  from  her 
unwillingness  to  endure  the  pains  of  child  bearing.  The 
husband  testifies  that  a  short  time  before  she  finally  left  him, 
she  said  that  she  would  not  live  with  any  man  and  bring  uj)  a 
family  of  children.  This,  in  itself,  constitutcil  no  justification 
of  her  deserting  her  husband.    Leavilt  v.  Lcavilt,    Wright  719. 

It  is  not  questioned  that  a  gross  abuse  of  marital  rights, 
resulting  in  injury  or  suffering  to  the  wife,  may  constitute 
"  cruelty  "  in  the  eye  of  the  law,  and  justify  the  wife  in  sepa- 
rating herself  from  her  husband.  But  no  such  case  is  estab- 
lished by  the  evidence  on  the  j>art  of  the  defendant.  There 
is  no  pretence  of  any  peculiar  debility  or  physical  infirmity 
on  the  part  of  the  wife  ;  no  allegation  of  any  violence  or  com- 
pulsion on  the  i)art  of  the  husband.  Her  own  evidence  shows 
that  she  continued  to  cohabit  with  her  husband  prior  to  the 
birth  of  her  child,  and  that  a  few  weeks  subsequently  she 
voluntarily  returned  to  his  bed.  The  physician  in  attend- 
ance u[)on  her  during  her  confinement  has  not  l)een  examinetl. 
The  case,  in  all  its  essential  features,  falls  far  short  of  the  case 
made   by   the   petitioner   in   Siiaw  v.  oliaw,   17   Conn.   189, 


280  CxiSES  IN  CHANCERY. 

Moores  v.  Moores. 

which  was  heUl  by  the  court  iusufficient  to  warrant  a  divorce 
ou  the  grouiul  of  cruelty. 

The  coiuhicfc  which  will  justify  the  wife  in  abandoning  her 
husband,  must  be  such  as  wouhl  constitute  a  ground  for 
divorce  or  alimony.  Bailer  v.  Builcr,  1  Parsons'  8eL  Cas. 
329  ;  Lor/an  v.  Logan,  2  B.  Monroe  142  ;  Bishop  on  31.  & 
I)h.,  §  526. 

I  find  notlilng  in  the  evidence  to  establish  the  charge  of 
cruelty,  or  to  justify  the  desertion  of  the  complainant  by  ids 
wife.  No  opinion  is  designed  to  be  intimated  in  favor  of  the 
competency  of  the  wife  as  a  witness.  That  objection  was  not 
raised  nor  consiiiered. 

The  second  ground  of  defence  is,  that  the  wife  has  lived 
apart  from  her  husband  with  his  consent. 

The  evidence  shows  that  the  wife  left  her  husband  without 
his  knowledge  or  consent,  on  the  thirteenth  of  December, 
1856.  On  the  second  of  February,  1857,  within  two  months 
afier  the  desertion,  written  articles  of  separation  were  en- 
tered into  by  the  [)arties,  in  which,  after  reciting  that 
unhappy  diflferences  subsist  between  them,  "  for  which  they 
are  agreed  to  live  separate,"  the  com[)lainant  amotig  other 
things,  covenants  *'  that  he  will  permit  his  said  wife,  from 
henceforth  during  her  life,  to  live  separate  from  him,  and 
stay  and  reside  at  such  place  or  places  as  she  pleases."  After 
the  execution  of  the  agreement,  tliere  is  no  pretence  that  the 
husband  has  ever  expressed  his  dissent  from  the  agreement, 
or  his  desire  to  terminate  it;  or  has  ever,  directly  or  indi- 
rectly, requested  his  wife  to  return  to  his  house,  or  intimated 
his  willingness  that  she  should  do  so. 

It  is  well  settled  that  a  more  separation  of  husband  and 
wife  does  not  constitute  desertion  within  the  meaning  of  tite 
statute.  To  constitute  desertion,  the  wife  must  absent  her- 
self from  her  husband  of  her  own  accord,  without  his  consent,, 
and  against  his  will.  Drake  v.  Drake,  Halst.  Dig.  385, 
"  Divorce,'^  §  1  ;  Jennings  v.  Jennings,  2  Bcas.  38  ;  Cook  v. 
Cook,  Ibid.  263;  Bishop  on  M.  &  Div.,  §  511. 

But  it   is   urged   that  the   act   of  the  wife  in  leaving  her 


MAY  TERM,  1863.  281 

husband  without  justifiable  cause,  and  without  his  consent, 
was  a  wilful  act  of  desertion.  That  s!ie  has  never  since  re- 
turned, or  expressed  a  wilh'ngness  to  do  so,  but  on  the  con- 
trary declares  that  it  was  then,  and  ever  since  has  been,  her 
fixed  determination  not  to  live  with  the  complainant  as  hh 
wife.  Hence,  it  is  argued  that  the  desertion  was  wilful,  con- 
tinued, and  obstinate.  The  argument,  however  plausible,  is 
not  sound. 

The  complainant  is  before  the  court,  seeking  redress  for  a 
wrong  done  by  the  defendant  in  refusing  to  discharge  her 
matrimonial  obligations.  But  what  right  has  he  to  complain 
of  any  act,  as  a  violation  of  his  rights,  which  was  done  with 
his  assent.  The  general  maxim  of  the  law  is  volenti  nonfii 
injuria.  If  the  complainant  has  sustained  no  injury,  he  has 
no  ground  for  redress.  Adtnitting  that  the* agreement  for 
separation  by  the  husband  and  wife  was  not  bintling,  that 
the  conduct  of  the  wife  in  absenting  herself  from  her  husband 
was  unjustifiable  and  even  criminal,  it  will  not  at  all  aid  tiie 
complainant's  case.  Adultery  is  not  less  a  crime  if  committed 
with  the  husband's  consent;  but  no  principle  is  better  settled, 
or  founded  upon  clearer  reason,  than  that  no  divorce  in  such 
case  will  be  granted  at  the  instance  of  the  husband.  Nor  is 
the  case  at  all  altered  by  the  declared  unwillingness  of  the 
wife  to  return  to  lier  husband.  Tiie  right  of  the  husband  to 
redress  must  depend,  not  upon  the  intent,  but  upon  the  overt 
act  of  the  wife.  The  simple  inquiry  is,  has  the  wife,  for  the 
space  of  three  years,  absented  herself  from  her  husband  with- 
out his  consent  and  against  his  will?  If  she  has  not,  her 
desertion  is  not,  within  the  contemplation  of  the  law,  wilful 
and  obstinate. 

Tn  Bufier  v.  Butler,  1  Parsons^  Sel.  Cas.  335,  v/here  this 
question  was  under  consideration,  the  court  said  :  "Although 
no  court  determining  on  the  marriage  relation,  recognizes 
such  consent  separations  as  arrangements  strictly  legal  ;  yet, 
when  it  is  clearly  shown  that  the  withdrawal  of  a  wife  or 
husband  from  mutual  eoliabitation,  has  been  the  result  of 
such  an  understanding  or  agreement;  or  where  the  with- 
drawal of  one  has  received  the  subsequent  approbation  of  the 
other,  the  continuity  of  absence,  under  such  circumstances,  is 


282  CASES  IN  CHANCERY. 

not  a  wilful  and  malicious  desertion.  The  malice  of  the  de- 
sertion arises  from  its  being  the  perverse  act  of  the  one,  in 
refusing  the  performance  of  the  matrimonial  obligations  and 
duties,  which  the  otiier  has  the  legal  riglit  to  require.  But 
when  such  separation  has  been  the  result  of  mutual  arrange- 
ments, and  these  clearly  established  in  proof,  then  each  is 
in  equal  fault  in  this  pirticuhir,  and  neither  can  claim  a  legal 
right  against  the  other,  in  c;)nsequence  of  an  act  in  which  he 
or  she  has  been  an  cqu  U  participant.  S:ich  assent  or  acqui- 
escence, however,  are  revocable  acts;  and  if  either  party  per- 
sists in  a  state  of  separation  after  sucli  revocation,  he  or  she 
thenceforth  occupies  the  position  of  a  party  quitting  cohabita- 
tion on  his  or  her  own  motion." 

It  is  further  ari>;ued  that  a  voluntarv  agreement  by  husband 
and  wife  to  live  separate  is  not  regarded  by  the  courts  as 
binding,  and  hence  it  is  insisted  that  the  agreement  of  the  hus- 
band can  constitute  no  defence  for  the  desertion  of  the  wife. 
It  is  true  tiiat  courts  do  not  favor  agreements  by  husband  and 
wife  to  live  apart.  They  are  regarded  as  against  the  policy  of 
the  law,  and  although  not  treated  for  all  purposes  as  abso- 
lutely void,  they  constitute  no  bar  to  an  action  by  either  of  the 
parties  for  a  restitution  of  marital  rights.  Nor  does  it  oper- 
ate, in  the  eye  of  the  law,  as  a  release  of  either  of  the  parties 
from  their  matrimonial  obligations.  It  will  not,  therefore, 
be  permitted  to  stand  in  the  way  of  the  restitution  of  such 
rio'hts  and  the  enf)rceinent  of  such  obligations.  But  the 
j)rinci[)le  is  invoked  l)y  the  com[)laiiKint,  not  for  the  purpose 
of  sustaining  the  policy  of  the  law  and  enforcing  the  perform- 
ance by  the  wife  of  her  conjugal  duties,  but  for  the  purpose 
of  destroying  the  marriage  relation,  in  direct  contravention 
of  the  policy  of  the  law.  It  would  be  a  gross  perversion  of 
the  princii)le  to  abrogate  the  contract  under  color  of  main- 
taininii;  the  rights  of  the  husband,  an<l  thus  inflict  upon  the 
wife  the  severest  penalty  for  an  act  done  with  the  husband's 
assent. 

The  complainant's  bill  must  be  dismissed. 

Cited  in  Marshraan  v.  ConUin,  G  C.  E.  Gr.  548;  English  v.  English,  I'J 
C.  E.  Gr.  73;  Mddowneg  v.  Mddowney,  Id.  329;  English  v.  English, 
Id,  580  ;  FoHer  v.  Day,  Id.  GOl ;  Taylor  v.  Taylor,  1  Stew  208. 


MAY  TERM,  1863.  283 


Grinnell  v.  Merchants  Insurance  Co. 


Brenton  B.  Grinnell  vs.  The  Merciiaxts  Insurance 

Company. 

1.  A  creditor  of  an  insolvent  corporation,  who  shows  a  reasonable  excuse 
for  not  presenting;  his  claim  witliin  the  time  limited  by  tlie  order  of  the 
court  in  proceedings  under ''the  act  to  prevent  frauds  by  incorporated 
companies,"  iVix.  Die;.  371,  will  be  admitted  at  any  time  before  actual  dis- 
tribution, or  even  after  partial  payments,  if  there  be  a  surplus  in  the  hands 
of  the  receivers,  so  as  not  to  interfere  with  payments  already  made. 

2.  A  creditor  does  not,  by  such  presentment,  obtain  a  vested  right  to  a 
certain  dividend  to  the  exclusion  of  others, 

3.  The  fact  that  ihe  petitioner  was  an  officer  of  the  corporation,  and  that 
the  proceedinjj;s  to  establish  its  insolvency  were  instituted  in  his  name,  can- 
not prejudice  his  right  to  be  let  in  to  prove  his  claim  before  the  receivers. 

4.  Ten  days  allowed  to  present  claim. 


This  was  an  application  by  a  creditor  of  an  insolvent  cor- 
poration, to  be  let  iu  to  prove  his  claim   before  the  receivers. 

W.  B.  Williams,  for  the  petitioner. 

/.  W.  Scudder,  for  the  receivers,  contra. 

The  Chancellor.  Under  the  provisions  of  the  act  to 
prevent  frauds  by  incorporated  companies,  Nix.  Dig.  371,  the 
defendants  were  declared  insolvent,  an  injunction  issued,  and 
receivers  were  ap])ointed.  Tlie  time  limited  for  the  credit- 
ors to  present  their  claitns  having  expired,  the  petitioner  now 
asks  to  be  let  in  to  prove  his  claim  before  the  receivers. 

The  bias  of  the  court,  on  application  to  be  let  in  to  prove, 
is  in  favor  of  the  creditor.  The  design  of  the  statute  is  to 
secure  an  equal  distribution  of  the  assets  of  tlie  corporation 
among  all  its  creditors.  In  practice,  an  order  is  made  limit- 
ing a  time  within  which  claims  shall  be  jjresented  and  proved, 
in  order  to  facilitate  the  proceedings,  and  to  promote  desj)atch 
in  the  settlement  of  the  estate.  But  no  creditor  thereby 
obtains  a  vested  right  to  a  certain  dividend  to  the  exclusion 
of  others. 


284  CASES  IN   CHANCERY. 

Grinriell  v.  Mci-cliants  Insurance  Co. 

If  a  reasonable  excuse  for  delaying  to  make  an  earlier  claim 
is  shown,  the  creditor  will  be  admitted  at  any  time  before 
actual  distribution,  or  even  after  partial  payments,  if  there  be 
a  surplus  in  the  hands  of  the  receivers,  so  as  not  to  interfere 
Avith  payments  already  made.  Laxhlci/  v.  Hocfg,  11  Vesey 
602;  Gillespie  v.  Akxd.nder,  3  Ra^s.  130;  Wihhr  v.  Keeler, 
3  Paige  164;  Pratt  v.  Balhbun,  7  Paige  271;  2  Smith's 
Chan.  Prac.  267. 

The  petitioner  has  satisfactorily  accounted  for  not  j)resent- 
ing  his  claim  within  the  time  limited  by  the  order  of  the 
court.  The  claim  originated  in  the  petitioner's  becoming  bail 
in  error  for  the  corporation,  and  in  his  being  compcdled  to  pay 
the  judgment  recovered  against  them.  He  held  a  bonil  and 
mortgage  as  security  for  the  amount  thus  advanced,  upon 
uhich  a  foreclosure  suit  was  instituted,  and  the  existence  or 
extent  of  the  deficiency  of  the  amount  realized  upon  the 
mortgage  to  satisfy  the  claim  of  the  petitioner,  was  not  ascer- 
tained when  the  time  limited  for  presenting  claims  ex{)ired. 
He  was  induced,  moreover,  by  the  declarations  of  thfe  receiv- 
ers, to  believe  that  the  formal  presentment  and  proof  of  his 
claim  was  unnecessary. 

The  fact  that  the  petitioner  v/as  an  officer  of  the  corpora- 
tion, and  that  the  proceedings  to  establish  its  insolvency  were 
instituted  in  his  name,  cannot  prejudice  his  claim  to  the  re- 
lief })raycd  for.  It  is  not  suggested  that  any  delay  or  pre- 
judice to  the  rights  of  the  creditors  has  resulted  from  those 
circumstances.  The  evidence  does  not  warrant  the  allega- 
tion of  the  answer  that  the  petitioner  either  agreed,  or  be- 
came liable  in  equity,  to  accept  the  bond  and  mortgage  in  his 
hands,  in  satisfaction  of  the  amount  advanced  by  him  as  bail 
for  the  corporation.  lie  was  under  no  obligation  to  receive 
less  than  the  full  amount  advanced.  There  is  nothing  in  any 
of  the  objections  raised  by  the  answer  of  the  receivers,  suffi- 
cient to  bar  the  j)etilioner  of  his  right  to  present  his  claim 
and  to  share  in  the  distribution  of  the  assets.  Tiie  petitioner 
will  be  allowed  ten  days  from  the  date  of  the  order  to  present 
his  claim  to  the  receivers. 


MXY  TERM,  1863.  285 

Kicholson  v.  Janeway  et  al. 


John  B.  Nicholson  vs.  William  R.  Janeway  and  others. 

1.  An  undue  concealment  of  a  fact  to  the  prejudice  of  another,  which 
one  party  is  bound  in  conscience  and  duty  to  disclose  to  the  other,  and  in 
respect  to  which  he  cannot  innocently  be  silent,  constitutes  a  fraud  against 
which  equity  will  relieve. 

2.  In  all  transactions  between  partners,  and  all  parties  occupying  towards 
each  other  a  tiduciary  character,  the  law  requires  the  utmost  degree  of 
good  failh. 

3.  If  a  partner  who  superintends  the  business  and  accounts  of  the  con- 
cern, by  concealment  of  the  true  state  of  the  accounts  and  business,  pur- 
chases the  share  of  another  partner  for  an  inadequate  price,  the  purchase 
will  be  held  void,  and  the  purchaser  compelled  to  account  for  the  real 
value. 

4.  Nor  does  it  affect  the  case  that  the  alleged  concealment  is  charged  to 
have  been  practiced  by  one  partner  only,  and  that  tlie  others  were  igno- 
rant of  the  fact  concealed.  The  principle  applies,  whether  the  fraud  was 
perpetrated  by  the  party  directly  interested,  or  by  an  agent.  The  principal 
by  seeking  to  retain  any  benefit  resulting  from  the  transaction,  becomes 
particeps  criminis,  however  innocent  of  the  fraud  in  its  inception. 

5.  Equity  will  relieve  against  a  contract  made  under  a  mistake,  or  igno- 
rance of  a  material  fact;  not  only  where  there  has  been  a  concealment  of 
facts  by  one  party,  but  also  in  cases  of  mutual  mistake  or  ignorance  of 
facts. 

6.  To  constitute  a  fraud  or  mistake  for  which  equity  will  relieve  against 
a  contract,  it  is  essential  that  the  fact  misrepresented  or  concealed  bema- 
terial.  It  must  either  affect  tlie  substance  of  the  contract,  or  the  value  of  the 
thing  bargained  for ;  or  be  such  as  induces  the  party  aggrieved  to  pay  more, 
or  accept  less,  for  the  thing  bargained  for,  than  its  real  value. 

7.  Equity  will  not  grant  relief  against  a  contract  on  the  ground  of  mis^ 
take,  when  the  mistaken  fact  did  not  operate  as  an  inducement  to  enter 
into  the  contract. 


II.  V.  Speer,  for  complainant. 

Schenck,  for  defendants,  cited  Farrar  v.  Afdon,  1  Dev.  L. 
R.  69  ;  Saunders  v.  HaUerman,  2  Ired.  L.  i?.  32  ;  2  Kent's 
Com.  487. 

The  Chancellor.     In   tlie  year  1861,  the  complainant 
and  the  defendants  were  co-partners  in  the  business  of  raanu- 
VOL.  S 


286  CASES  IN  CHANCERY. 

Kicholson  v.  Janeway  et  al. 

facturing  aud  selling  paper  hangiugs.  By  the  terms  of  the 
contract,  the  partnership  was  to  continue  until  the  first  of 
July,  1864.  By  an  agreement  entered  into  on  the  seven- 
teenth of  December,  1861,  between  the  defendants  of  the 
one  part,  and  the  complainant  of  the  other,  the  co-partner- 
ship subsisting  between  them  was  dissolved,  and  the  defend- 
ants having  associated  themselves  as  partners  in  a  new  firm, 
agreed  to  purchase  the  interest  of  the  complainant  in  the 
assets  and  business  of  the  old  firm,  upon  certain  conditions 
specified  in  the  agreement.  The  agreement  was  intended  to 
operate,  and  virtually  did  operate  as  a  withdrawal  of  the 
complainant  from  the  firm,  and  a  transfer  of  his  interest  in 
the  partnership  concerns  to  his  co-partners,  the  defendants. 
In  pursuance  of  the  articles  of  dissolution,  the  complainant 
retired  from  the  firm  on  the  thirty-first  of  December,  1861, 
but  continued  in  the  employ  of  the  defendants  at  a  stipula- 
ted salary,  until  the  twenty-first  of  April  following,  when 
he  was  discharged  from  their  service.  On  the  sixth  of  Oc- 
tober, 1862,  the  complainant  filed  his  bill  in  this  cause,  pray- 
ing that  the  articles  of  dissolution  may  be  declared  null  and 
void,  and  that  the  complainant  may  be  restored  to  his  mem- 
bership in  the  firm,  from  the  date  of  the  articles  of  dissolu- 
tion, and  to  all  his  rights  as  a  partner. 

Previous  to  the  year  1861,  the  aflfliirs  of  the  concern  had 
been  prosperous,  but  upon  the  breaking  out  of  the  rebellion, 
and  tiie  consequent  depression  and  embarrassment  of  the 
market,  its  business  was  greatly  diminished,  and  tiie  firm 
was  threatened  with  heavy  losses.  From  July  until  Decem- 
ber, its  manufactory  was  closed.  In  this  state  of  things  the 
complainant  expressed  a  desire  to  withdraw  from  the  firm,  to 
which  his  co-partners  assented,  and  a  dissolution  of  the  part- 
nership was  agreed  upon  and  executed.  One  of  the  terms 
of  dissolution  was,  that  the  books  and  accounts  of  the  firm 
should  be  balanced  and  the  amount  ascertained,  to  which, 
under  the  articles  of  co-partnership,  the  complainant  was 
entitled,  excluding  therefrom  all  doubtful  claims.  That  for 
the  amount  thus  ascertained,  the  defendants  should  give  their 


MAY  TERM,  1863.  287 

Nicholson  v.  Janeway  et  al. 


notes  at  six,  twelve,  and  eighteen  mouths.  Ti)at  the  iiis- 
pended  or  doubtful  debts  should  be  collected  by  the  defend- 
ants, and  the  complainant's  share  of  the  net  proceeds  paid 
to  him  from  time  to  time,  as  it  should  be  collected.  It  turned 
out  upon  a  settlement  of  the  accounts,  that  instead  of  there 
being  a  cash  balance  due  the  complainant  at  the  date  of  the 
dissolution,  the  cash  balance  was  against  him  to  the  amount 
of  $1800.  The  suspended  debt,  contrary  to  the  expectation 
of  all  the  partners  when  they  entered  upon  the  negotiation 
to  dissolve,  amounted  to  $20,917.20.  The  complainant's 
portion  of  this  debt  was  $1183.44,  which  exceeded  his  en- 
tire interest  in  the  concern.  The  true  state  of  the  account 
was  ascertained  during  the  progress  of  the  negotiation  for  dis- 
solution by  one  of  the  partners,  who  was  the  principal  finan- 
cial manager,  and  who  had  charge  of  the  books  of  the  firm. 
He  became  satisfied,  from  an  examination  of  the  books,  that 
there  would  be  but  little  or  nothing  coming  to  the  complain- 
ant upon  the  dissolution  of  the  firm.  This  fact  was  not  dis- 
closed to  the  complainant,  but  he  was  suffered  to  execute  the 
contract  under  the  erroneous  expectation  and  belief  that  upon 
his  leavinir  the  firm  there  would  be  found  a  cash  balance  in 
his  favor. 

This  constitutes  the  entire,  equity  of  the  complainant's  bill. 
Admitting  the  charge  to  be  fully  sustained  by  the  evidence, 
does  it  furnish  any  ground  for  relief  in  equity? 

It  is  no  objection  to  relief  that"  there  was  no  actual  or  in- 
tentional misrepresentation  of  a  material  fact.  None  is 
charged.  Whether  a  fraud  is  effected  by  silence  or  by  posi- 
tive misrepresentation,  is  immaterial.  An  undue  conceal- 
ment of  a  material  fact  to  the  prejudice  of  another,  which 
one  party  is  bound  in  conscience  and  duty  to  disclose  to  the 
other,  and  in  respect  to  which  he  cannot  innocently  be  silent, 
constitutes  a  fraud,  against  which  equity  will  relieve.  1 
Story's  Eq.  Jtir.,  §  204. 

In  regard  to  partners,  and  all  parties  occupying  towards 
each  other  a  fiduciary  character,  the  law  to  prevent  undue  ad- 
vantage from  the  confidence  which  tiie  relation  naturally  ere- 


288  CASES  IN  CHANCERY. 

Nicholson  v.  Janeway  et  al. 

ates,  requires  the  utmost  degree  of  good  faith  [uberrima  fides) 
in  all  transactions  between  the  parties.  1  Story's  Eq.  Jur., 
§218. 

And  hence  if  a  partner  who  superintends  the  business  and 
accounts  of  the  concern,  by  concealment  of  the  true  state  of 
the  accounts  and  business,  purchases  the  share  of  another 
partner  for  an  inadequate  price,  by  means  of  such  conceal- 
ment, the  purchase  will  be  held  void,  and  the  purchaser  com- 
pelled to  account  for  the  real  value.  Maddeford  v.  Austwick, 
1  Sim.  R.8d;  1  Story's  Eq.  Jur.,  §  220. 

And  the  case  is  in  no  wise  affected  by  the  fact  that  the 
alleged  concealment  is  charged  to  have  been  practiced  by  one 
of  the  defendants  only,  and  that  the  others  may  be  assumed 
to  have  been  entirely  ignorant  of  the  fact  in  regard  to  which 
the  concealment  was  practiced.  The  negotiation,  it  is  ad- 
mitted, was  conducted  by  one  of  the  defendants,  as  well  on 
his  own  behalf,  as  the  agent,  and  on  behalf  of  his  associates. 
The  principle  applies,  whether  the  fraud  was  perpetrated  by 
the  party  directly  interested  or  by  an  agent.  The  principal, 
by  seeking  to  retain  any  benefit  resulting  from  the  transac- 
tion, becomes  particeps  criminis,  however  innocent  of  the 
frand  in  its  inception.     1  Story's  Eq.  Jur.,  §  193,  a. 

Nor  would  the  case  have  been  materially  altered  if  all  the 
defendants  had  been  equally  ignorant  of  the  fact.  A  con- 
tract made  under  a  mistake  or  ignorance  of  a  material  fact, 
is  relievable  in  equity.  The  rule  applies,  not  only  where 
there  has  been  a  concealment  of  facts  by  one  party  which 
would  amount  to  fraud,  but  also  to  cases  of  mutual  mistake 
or  ignorance  of  facts.     1  Story's  Eq.  Jur.,  §  140. 

But  to  constitute  a  fraud  or  mistake,  f)r  which  equity  will 
relieve  against  a  contract,  it  is  essential  that  the  misrepresen- 
tation or  concealment  should  be  practiced,  or  the  mistake  made, 
in  regard  to  a  fact  material  to  the  contract ;  that  is,  it  must 
be  essential  to  its  character,  and  an  efficient  cause  of  its  con- 
coction.    1  Story's  Eq.  Jur.,  §  141,  §  192,  §  195. 

Upon  this  point  all  the  authorities  concur.  The  flict  mis- 
represented or  concealed,  must  either  affect  the  substance  of 


MAY  TERM,  1863.  289 


Nicholson  v.  Janeway  et  al. 


the  contract,  or  the  value  of  the  thing  bargained  for;  or,  il  il 
be  an  extraneous  fact,  it  must  be  such  as  induces  the  party 
aggrieved  to  pay  more  or  to  accept  less  for  the  thing  bar- 
gained for,  than  its  real  value. 

Now  it  is  not  pretended  that  the  complainant  was  induced, 
by  the  mistake  under  which  he  labored,  to  accept  less  for  his 
interest  in  the  concern  than  its  real  value.  The  prospects 
of  the  concern  were  not  in  reality  better,  nor  was  the  value 
of  the  assets  greater  than  he  believed  it  to  be  when  he 
assented  to  the  dissolution.  He  contracted  to  receive  for 
his  interest  in  the  concern  precisely  its  value  at  the  time  of 
the  dissolution,  viz.  his  share  of  the  assets  realized  in  cash, 
or  its  equivalent,  and  his  share  of  the  suspended  debt  as  fast 
as  it  should  be  collected.  The  only  mistake  was,  that  the 
suspended  debt  of  the  concern  was  larger  than  he  antici- 
pated, and  he  consequently  received  no  portion  of  his  inter- 
est in  cash.  It  does  not  appear  that  he  will  eventually  re- 
ceive a  dollar  less  than  was  anticipated.  He  may  receive 
more,  though  the  time  of  payment  be  postponed  beyond  his 
expectations.  I  think,  therefore,  that  the  mistake  is  not  of 
such  a  character  as-  entitles  the  party  to  relief  in  equity. 

But  what  relief  can  the  complainant  have?  He  docs  not 
ask  that  he  shall  be  paid  the  full  value  of  his  interest  in  the 
concern.  That  is  secured  to  him  by  the  contract.  But  he 
asks  that  the  contract  for  the  dissolution  shall  be  rescinded, 
and  that  he  shall  be  restored  to  all  his  rights  as  a  partner, 
from  the  time  of  the  dissolution  in  1861.  How  shall  that 
be  done  in  justice  to  the  other  partners?  The  complainant 
contributed  but  little  to  the  financial  capital  of  the  partner- 
ship. He  was  taken  into  the  concern  as  a  partner,  as  the 
bill  shows,  mainly  on  account  of  liis  skill  and  experience  as 
a  manufacturer.  That  was  his  contribution  to  the  capital  of 
the  partnership.  Of  that  the  defendants  have  been  deprived 
for  nearly  two  years.  The  partnership,  by  its  limitation, 
will  terminate  within  nine  months.  By  what  principle  of 
equity  shall  he  be  permitted  to  share  in  the  profits  of  the 
concern   as  a  partner,  when  he   has  contributed  nothing  of 


290  CASES  IN  CHANCERY. 

Weart  v.  Rose. 

skill  or  capital  to  the  business,  aud  shared  in  none  of  the 
hazards  of  the  enterprise?  He  was  apprised  of  liis  mistake, 
as  the  bill  alleges,  immediately  after  the  execution  of  the 
contract.  Had  he  then  refused  to  witlidraw  from  the  firm  ; 
had  he  insisted  upon  his  rights,  and  proffered  his  services  a? 
a  partner,  and  called  upon  this  court  for  its  protection,  he 
Avould  at  least  have  had  the  semblance  of  equity  on  his  side. 
But  he  acquiesced  in  the  contract,  withdrew  from  the  firm 
during  its  period  of  depression,  and  accepted  a  post  of  su- 
perintendent in  the  employment  of  the  defendants,  at  a  stated 
salary,  thus  escaping  all  -the  hazards  of  the  business.  And 
now  when  business  has  revived,  and  the  aflPairs  of  the  firm 
become  more  prosperous,  he  asks  to  be  restored  to  all  his 
rights  as  a  partner.  The  relief  asked  for  would  be  utterly 
inconsistent  with  the  plainest  principles  of  justice  and  equity. 
The  bill  must  be  dismissed. 

Cited  in  Conover  v.  Wardell,  7  C.  E.  Or.  499 


Charles  D.  Weart  vs.  Samuel  K.  Rose. 

1.  Where  it  appears  that  the  adjunct  of  quantity  in  a  deed  is  used  as 
description  merely,  and  not  as  indicating  tlie  precise  contents  of  the  land 
conveyed,  a  mere  deficiency  in  the  quantity  is  not  of  itself  evidence  of  a 
fraudulent  intent. 

2.  Where  it  appears  by  definite  boundaries,  or  by  words  of  qualification, 
that  the  statement  of  the  quantity  of  acres  in  a  deed  is  mere  matter  of 
description,  and  not  of  the  essence  of  the  contract,  the  buyer  takes  the  risk 
of  the  quantity,  if  there  be  no  intermixture  of  fraud  in  the  case. 

3.  Where  land  is  sold  by  certain  boundaries,  or  for  so  much  for  the 
entire  parcel,  any  surplus  over  the  quantity  given  belongs  to  the  vendee, 
and  the  price  cannot  be  increased  or  diminished  on  account  of  disagreement 
in  measure  or  quantity. 

4.  If  the  sale  is  by  the  acre,  and  the  statement  of  the  number  of  acres  is 
of  the  essence  of  the  contract,  the  purchaser,  in  case  of  a  deficiency,  is  en- 
titled in  equity  to  a  corresponding  deduction  from  the  price. 

5.  Where  the  difl'erence  between  the  actual  and  estimated  quantity  of 
acres  of  land  sold  in  the  gross,  is  so  great  as  to  warrant  the  conclusion 
that  the  parties  would  not  have  contracted  had  the  truth  been  known,  in 


MAY  TERM,  1863.  291 

Weart  v.  Rose. 

6uch  case  the  party  iiyured  is  entitled  to  relief  in  equity  on  the  ground  of 
gross  mistake.. 

6.  Where  the  vendor  agrees  to  convey  a  farm  in  gross,  "  containing 
about  one  liuudred  and  fifteen  acres  of  land,'"  and  the  deed  executed  in 
pursuance  of  the  agreement,  describes  the  land  by  boundaries,  and  adds, 
"containing  about  one  hundred  and  fifteen  acres  of  land,"  a  deficiency  of 
G.12  acres  will  not  entitle  the  purchaser  to  an  abatement  of  the  purchase 
monejo 

The  cause  was  heard  upou  the  bill,  answer,  and  proofs. 

E.  W.  Scudder,  for  complainant. 

J.  Wllsorij  for  defendant. 

Cases  cited  by  complainant's  counsel.  Belknap  v.  Sicdey, 
2  Duer  579  ;  Barnes  v.  Gregory,  1  Head  [Term.)  230  ;  Har- 
rison V.  TaJbott,  2  Dana  258  ;  Quesnel  v.  Woodlief,  2  Hen. 
&  Man.  173,  note;  4  KenCs  Cora.  407;  Lee  v.  Hester,  20 
Georgia  588;  Thomas  v.  Perry,  1  Peters'  C.  C.  R.  49; 
Marvin  v.  Bennett,  26  Wend.  169;  Stebbitis  v.  Eddy,  4 
Mason's  C.  C.  jB.  414;  1  Story's  Eq.  Jur.,  §  141,  144,  a; 
Dart  on  Vendors  ( Waterman's)  307-8-9 ;  Dalton  v.  Rust,  22 
Texas  133;   Cause  v.  Boyles,  3  Green's  Ch.  R.  212. 

Cases  cited  by  defendant's  counsel.  Opdyke  v.  Stephens, 
4  Dutcher  90;  Rogers  v.  Colt,  1  Zab.  704;  Sjyeer  v.  Whit- 
field, 2  Stock.  107  ;  2  Greenl.  on  Ev.,  §  601-2  ;  1  Ibid.,  § 
275-6-7  ;  Ibid.,  §  287-8  ;  Mann  v.  Pearson,  2  Johns.  R. 
37  ;  Jackson  v.  Barringer,  15  i6ic?.  471  ;  Jackson  v.  Defen- 
dorf,  1  Came«'  J?.  493  ;  IFi?)c/i  v.  [(7«c/ies^c/-,  1  Fe.sey  &  B.S75; 
Morris  Canal  Co.  v.  Einmett,  9  Paige  168;  Stebbins  v.  ^'cft/y, 
4  Jfason's  C  C.R.Ui;  Powell  v.  <7/ar/t,  5  .Mass.  355  ;  Dojyng 
V.  King,  1  Fmies  322  ;  Smith  v.  ^yrm.s,  6  Bi7in.  102-9  ;  1 
/S^or^/'s  Eq.  Jur.,  §  146,  no^e  2,  §  149;  Z>ear6  v.  Carr,  2 
G/-ee/i's  C/i.  i^.  513  ;  Penny  v.  Martin,  4  JoA?is.  CA.  A\  566. 

The  Chancellor.  The  defendant;  by  deed  bearing  date 
on  the  first  of  A])ril,  1861,  conveyed  to  the  complainant,  for 


,292  CASES  IN  CHANCERY. 

Weart  v.  Eose. 

the  consideration  of  $11,500,  a  farm  in  the  township  of  Sw- 
ing, described  in  the  deed  as  "containing  about  one  hundred 
and  fifteen  acres  of  land."  By  subsequent  measurement,  it 
was  ascertained  that  the  farm  in  fact  contained  but  one  hun- 
dred and  eight  acres  and  eighty-eight  hundredtlis,  or  about 
six  acres  less  than  it  was  described  in  the  deed  to  contain. 
The  complainant  gave  his  bond  and  mortgage  for  $5500,  a 
part  of  the  purchase  money.  The  bill  alleges  that  the  price 
agreed  to  be  paid  for  the  farm  was  $100  per  acre,  and  asks 
that  the  complainant  be  permitted  to  redeem  the  mortgage 
by  the  payment  of  the  balance  justly  due  thereon,  after  de- 
ducting therefrom  the  price  of  the  deficiency  ascertained  to 
exist  in  the  quantity  of  acres  as  described  in  the  deed.  The 
relief  is  sought:  1.  On  the  ground  of  fraud.  2.  Of  mutual 
mistake. 

The  contract  for  the  purchase  of  the  farm  was  originally 
made  by  Edward  Nickleson,  the  father-in-law  of  the  com- 
plainant, and  at  his  instance  the  deed  was  made  by  the  de- 
fendant to  the  complainant.  The  bill  charges  that  the  farrc 
was  represented  by  the  defendant  to  Nickleson,  at  the  time 
of  making  the  contract,  to  contain  one  hundred  and  fifteeo 
acres,  and  that  at  the  time  of  making  such  representations^ 
and  at  the  time  of  the  delivery  of  the  deed,  the  defendant 
well  knew  that  the  representations  were  false  and  fraudu- 
lent, and  that  there  was  a  considerable  deficiency  from  that 
amount;  and  that  the  defendant  also  exhibited  a  map  and 
plot  of  the  farm,  with  the  measurements  and  contents  thereon 
stated,  which  he  well  knew  were  incorrect  and  calculated  to 
deceive,  and  which  were  exhibited  to  the  complainant  and  to 
Nickleson  for  that  purpose.  The  ansvver  admits  that  he  ex- 
hibited the  map  and  {)lot  of  the  farm,  as  charged  in  the  bill, 
and  stated  his  belief  that  the  number  of  acres  were  truly 
slated  thereon,  but  fully  and  explicitly  denies  that  the  repre- 
sentation was  fraudulent,  or  that  it  was  false  within  the 
knowledge  or  belief  of  the  defendant. 

It  appears,  from  the  answer  and  from  the  evidence  in  the 
cause,  that  the  land  in  question  was  part  of  a  farm  belong- 


MAY  TERM,  1863.  293 

Weart  v.  Rose. 

ing  to  Ebenezer  P.  Rose,  and  which  was  devised  by  hira  to 
his  two  sons,  Jonathan  F.  Rose  and  Samuel  K.  Rose,  the  de- 
fendant. Prior  to  the  year  1840,  on  the  petition  of  Jonathan 
F.  Rose  for  partition,  the  farm  was  divided  between  the  two 
brothers,  by  commissioners  appointed  by  the  Orphans  Court, 
and  the  tract  conveyed  to  tiie  complainant  was  assigned  to 
the  defendant,  as  his  share  under  the  will  of  his  father.  The 
commissioners  caused  a  survey  and  map  of  the  entire  premi- 
ses to  be  made,  by  which  the  share  assigned  to  the  defendant 
is  described  as  containing  one  hundred  and  twenty-eight 
acres  and  three-quarters.  That  map,  in  the  familiar  hand- 
writing of  Thomas  Gordon,  an  experienced  surveyor,  was 
delivered  to  the  defendant,  on  his  coming  of  age,  by  his 
guardian,  as  the  evidence  of  his  title.  It  was  exhibited  by 
the  defendant  to  Nickleson  at  the  time  of  the  contract,  and 
delivered  to  the  complainant  with  the  deed  for  the  premises. 
By  deed  dated  on  the  seventeenth  of  June,  1852,  the  defend- 
ant conveyed  to  his  brother,  Jonathan  F.  Rose,  a  part  of  the 
tract  assigned  to  him  by  the  commissioners,  which  is  de- 
scribed in  the  deed  as  containing  twelve  acres,  more  or  less. 
Assuming  the  quantity  of  land  thus  conveyed  to  be  truly 
stated  at  twelve  acres,  it  left  in  the  balance  of  the  tract  one 
hundred  and  sixteen  acres  and  three-quarters,  or  about  one 
hundred  and  seventeen  acres.  The  farm  was  thereafter  as- 
sessed as  containing  one  hundred  and  seventeen  acres.  The 
defendant,  for  years  prior  to  the  sale  to  the  complainant, 
paid  tax  for  that  quantity  of  land.  It  does  not  appear  tiiat 
the  defendant  ever  had  the  tract  surveyed,  or  that  he  had 
any  evidence  of  the  quantity  of  land  contained  in  the  farm, 
other  than  that  furnished  by  the  map  of  the  commissioners. 
He  had  no  reason  to  suspect  the  accuracy  of  that  survey, 
nor  does  it  appear  from  the  evidence  that  its  accuracy  ever 
was  suspected,  by  himself  or  by  any  one  else,  until  long  after 
the  conveyance  to  the  complainant.  It  was  subsequently 
ascertamed  that  the  deed  to  his  brother,  instead  of  twelve 
acres,  contained  about  fourteen  acres,  which  left  the  balance 
of  the  tract  as  described  in  the  commissioners'  map  at  one 


294  CASES  IN  CHANCERY. 

Weart  v.  Eose. 

hundred  and  fifteen  acres,  instead  of  one  hundred  and  seven- 
teen acres,  as  previously  estimated.  On  the  twelfth  of  De- 
cember, 1860,  five  days  before  the  sale  to  Nickleson,  the 
defendant  offered  the  farm  for  sale  by  the  acre,  and  described 
it  in  the  conditions  of  sale,  as  containing  about  one  hundred 
and  fifteen  acres.  At  the  time  of  the  contract,  the  ma[)  was 
exhibited  by  the  vendor  as  evidence  of  the  quantity  con- 
tained in  the  tract  originally  allotted  to  him  by  the  commis- 
sioners. The  parties  went  to  a  surveyor  to  ascertain  hov/ 
much  was  included  in  the  tract  conveyed  by  the  defendant  to 
Jonathan  F.  Rose,  but  no  inquiry  was  made  as  to  the  area  of 
the  entire  tract.  Both  parties  appear  to  have  relied  upon 
the  accuracy  of  the  map  and  survey  made  by  the  commis- 
sioners, and  it  was  natural  that  they  should  have  done  so. 
By  actual  measurement,  it  appears  that  the  contents  of  the 
farm  as  designated  on  the  map  are  erroneous,  and  that  its 
real  contents,  instead  of  one  hundred  and  twenty-eight  acres 
and  three-quarters,  are  about  six  acres  less. 

The  first  circumstance  relied  on  as  evidence  of  a  fraudulent 
intent  on  the  part  of  the  defendant  is,  that  in  the  year  1857, 
he  advertised  the  farm  for  sale,  as  containing  about  one  hun- 
dred and  twenty  acres.  The  farm  was  then  supposed  to 
contain  about  one  hundred  and  seventeen  acres.  If  this 
circumstance  could  have  any  significancy  as  indicating  an 
intention  to  defraud,  it  surely  could  indicate  no  intention  to 
defraud  this  complainant.  It  appears,  however,  that  in  1851 
he  mortgaged  the  farm  to  his  mother,  describing  it  as  con- 
taining about  one  hundred  and  twenty  acres.  It  was  then 
supposed  to  contain  one  hundred  and  twenty-eight  acres  and 
three-quarters.  In  1855,  after  the  conveyance  to  his  brother, 
Forman,  he  mortgaged  the  residue  of  the  tract  to  him,  describ- 
ing it  as  containing  about  one  hundred  and  twenty  acres.  It 
was  then  supposed  to  contain  one  hundred  and  seventeen  acres. 
In  1855,  he  advertised  it  for  sale,  as  containing  about  one 
hundred  and  twenty  acres.  These  circumstances  show  that 
the  adjunct  of  quantity  was  used  as  descriptive  merely,  not 
as  indicating  the  precise  contents  of  the  farm.     It  affords  no 


MAY  TERM,  1863.  295 


Weart  v.  Rose. 


evidence  of  a  fraudulent  intent,  either  as  to  the  defendant  or 
as  to  any  other  party. 

'L'he  only  material  testimony  touching  the  charge  of  fraud 
is  that  of  Dr.  John  W.  Scudder.  He  testifies  that  before  the 
sale  the  defendant  called  on  him,  in  company  with  his  brother, 
Fonnan.  At  their  request  he  made  a  rough  estimate  of  the 
quantity  of  land  contained  in  the  lot  sold  by  the  defendant 
to  his  brother.  He  told  them  it  would  be  more  advantageous 
to  sell  by  tiie  lump,  than  by  the  acre.  He  adds  :  "  I  have 
often  heard  it  said  there  were  one  iiundred  and  twelve  acres 
in  the  farm  of  defendant.  I  supposed  the  contents  of  the 
farm  would  be  less  than  one  hundred  and  twelve  acres."  And 
in  answer  to  the  question,  whether  he  stated  to  defendant 
that  his  farm  would  not  hold  out  one  hundred  and  twelve 
acres,  he  answers  :  "  I  am  not  positive,  but  I  think  I  did  tell 
him  that  it  would  hardly  hold  out,  if  liis  survey  was  correct." 
If  this  evidence  is  taken  as  literally  true  ;  if,  in  fact,  the  wit- 
ness apprised  the  defendant  prior  to  the  contract  of  sale  that 
liis  farm  would  not  hold  out  one  hundred  and  twelve  acres, 
it  is  strong  evidence  in  support  of  the  cliarge  of  fraud.  The 
witness  is  a  gentleman  of  respectability,  whose  veracity  is 
unquestioned.  But  upon  the  face  of  his  testimony,  there  is 
reason  to  apprehend  that  he  has  fallen  into  a  serious  mistake 
as  to  the  number  of  acres  which  the  farm  was  supposed  to 
contain.  The  witness  states  that  he  was  called  upon  to  cal- 
culate the  quantity  of  land  in  the  lot  sold  by  the  defendant 
to  his  brother,  Forman.  He  did  calculate  it,  and  either  he, 
or  the  defendant,  or  his  brother,  deducted  it  from  the  whole 
contents  of  the  farm  marked  on  the  map.  The  map  ex- 
hib'ted  was  the  comnjissioners'  map,  on  which  the  whole  con- 
tents were  marked  as  one  hundred  and  twenty-eight  acres 
and  three  quarters.  The  witness  does  not  allege  that  he 
calculated  the  contents  of  the  entire  farm,  or  that  he  had  any 
knowledge  or  suspicion  of  the  error  which  exists  on  the  com- 
missioners' map.  His  conclusion  was  arrived  at  simply  by 
deducting  the  number  of  acres  in  the  lot  conveyed  by  the 
defendant   to   his   brother,   from    the  quantity  stated   on  the 


296  CASES  IN  CHANCERY. 

Weart  v,  Eose, 

commissioners'  map  to  be  in  the  whole  tract  allotted  to  th^ 
defendant.  That  never  could  have  shown  a  result  less  than 
one  hundred  and  twelve  acres.  It  would  have  shown  a  result 
less  than  one  hundred  and  seventeen  acres,  which  the  tract 
had  been  supposed  to  contain,  and  it  might,  according  to  the 
testimony  of  one  of  the  witnesses,  have  shown  a  result  of  a 
fraction  of  an  acre  less  than  one  hundred  and  fifteen  acres, 
but  it  never  could  have  shown  the  result  which  Dr.  Scudder 
supposes  it  did.  The  probability  of  this  mistake  is  greatly 
strengthened  by  the  statement  of  the  witness,  that  he  had  often 
heard  it  said  that  the  defendant's  farm  contained  one  hundred 
and  twelve  acres.  Now  there  is  not  the  slightest  evidence  in 
the  cause,  that  the  farm  was  ever  supposed  to  contain  but  one 
hundred  and  twelve  acres.  No  other  witness  in  the  cause  has 
ever  heard  of  it.  By  the  commissioners'  map,  the  farm  was 
said  to  contain  one  hundred  and  twenty-eight  acres  and  three 
quarters,  and  deducting  the  land  estimated  to  have  been  con- 
veyed to  Forman,  there  remained  one  hundred  and  seventeen 
acres.  The  farm  was  assessed  at  one  hundred  and  seventeen 
acres.  Taxes  for  years  were  paid  for  that  amount,  and  no 
other  witness  pretends  that  he  ever  heard  it  contained  less. 
The  farm  of  Forman  Rose  did  contain  about  one  hundred  and 
twelve  acres.  That  farm  the  witness  had  partially  run  out, 
and  it  is  not  improbable  that  the  two  were  confounded  in  his 
mind.  Aside,  therefore,  from  any  evidence  on  the  part  of  the 
defendant,  it  would  be  unsafe  to  regard  the  charge  of  fraud 
as  sustained  by  this  testimony. 

The  answer  of  the  defendant,  and  the  evidence  in  support 
of  it,  removes  all  doubt  upon  this  point.  The  defendant,  by 
his  answer,  refers  to  this  very  interview  with  Dr.  Scudder. 
as  evidence  in  his  behalf.  He  would  scarcely  have  referred 
to  it  if  he  had  known,  as  he  must  have  done,  if  tiie  recollec- 
tion of  the  witness  of  the  quantity  of  acres  supi)osed  to  be 
in  the  farm  is  correct — that  it  furnished  evidence  of  his 
fraudulent  conduct.  Forman  Rose,  moreover,  who  was  pre- 
sent at  the  conversation,  testifies  that  nothing  whatever  was 


MAY  TERM,  1863.  297 

WearL  v.  Rose. 

said  by  Dr.  Scudder  in  regard  to  the  farm  containing  less 
than  one  hundred  and  twelve  acres.  What  tiie  doctor  did 
say  was,  that  the  farm  wouhl  not  hokl  out  one  hundred  and 
seventeen  acres,  as  had  been  supposed.  This,  I  think,  is  the 
clear  result  of  the  evidence. 

The  second  ground  of  relief  is,  that  the  evidence  shows  a 
case  of  mutual  mistake,  and  that  in  equity  the  complainant 
is  entitled  to  a  deduction  from  the  price  corresponding  to  the 
deficiency  in  the  quantity  of  acres  specified  in  tiie  deed. 

The  general  rule,  as  laid  down  by  Chancellor  Kent,  is,  that 
where  it  appears  by  definite  boundaries,  or  by  words  of  quali- 
fication, as  "  more  or  less,"  or  as  "  containing  by  estinaation," 
or  the  like,  that  the  statement  of  the  quantity  of  acres  in  the 
deed  is  mere  matter  of  description,  and  not  of  the  essence  of 
the  contract,  the  buyer  takes  the  risk  of  the  quantity,  if  there 
be  no  intermixture  of  fraud  in  the  case.  4  Kent's  Com.  467  ; 
Mann  v.  Pearson,  2  Johns.  R.  37  ;  Marvin  v.  Bennett,  26 
Wend.  169  ;  Stebbins  v.  Eddi/,  4  3Iason  C.  (7.  i^.  414  ;  Powell 
V.  C/ark,  5  Mass.  R.  355 ;  1  Ston/s  Eq.  Jur.,  §  144,  a  ;  2 
Washburn  on  Real  Prop.,  630. 

So  where  the  land  is  sold  by  certain  boundaries,  or  for  so 
much  for  the  entire  parcel,  any  surplus  of  land  over  the 
quantity  given  belongs  to  the  vendee,  and  the  price  cannot  be 
increased  or  diminished  on  account  of  disagreement  in  mea- 
sure or  quantity.  3Iorris  Canal  Co.  v.  Einniett,  9  Paige  168  ; 
Inyiis  V.  McCrummin,  12  3Iartin's  R.  425 ;  Gormley  v. 
Oakcy,  7  Louis.  R.  452.  The  principle  is  embodied  in  the 
Louisiana  Code,  Art.  2471. 

But  where  the  sale  is  by  the  acre,  and  the  statement  of  the 
quantity  of  acres  is  of  the  essence  of  the  contract,  the  pur- 
chaser, in  case  of  a  deficiency,  is  entitled  in  equity  to  a  cor- 
responding deduction  from  the  price.  1  Sugden  on  Vendors 
369 ;  Barnes  v.  Gregory,  1  Head's  R.  230. 

There  is  a  further  qualification  of  the  general  rule,  viz. 
where  the  difference  between  the  actual  and  the  estimated 
quantity  of  acres  of  land  sold  in  the  gross,  is  so  great  as  to 
warrant  the  conclusion  that  the  parties  would  not  have  con- 


298  CASES  IN  CHANCER.Y. 

Weart  v.  Rose. 

tracted  liad  the  truth  been  known,  in  such  case  the  party 
injured  is  entitled  to  relief  in  equity  on  the  ground  of  gross 
mistake.  1  Ston/s  Eq.,  §  141  ;  Belknap  v.  Sealey,  2  Dn,er 
570;  Qiicsnd  v.  WondHef,  2  Hen.  &  Mmi.  173,  note;  Nelson 
V.  Mdtthews,  Ibid.  161;  Hdrr'ison  v.  Talhott,  2  Dana  258; 
Couse  V.  Boyle^,  3  Green's  Oh.  R.  212. 

The  land  conveyed  to  the  complainant  is  described  by 
metes  and  bounds.  The  corajilainant  has  the  distinct  thing 
for  which  he  contracted.  The  complaint  is,  that  there  was 
an  over  estimate  of  the  quantity  of  acres  contained  in  the 
tract.  It  is  described  as  containing  about  one  hundred  and 
fifteen  acres.  Its  actual  contents  are  one  hundred  and  eight 
acres  and  eighty-eight  hundredths,  showing  a  deficiency  of  a 
fraction  over  six  acres.  The  deficiency  is  not  sufficient  to 
warrant  the  interference  of  the  court  on  the  ground  of  gross 
mistake.  No  case  has  gone  so  far.  There  is  no  ground  for 
assuming  that-the  purchase  would  not  have  been  made  at  the 
price  stipulated,  had  the  true  quantity  of  land  been  known. 
Mr.  Nickleson  has  not  so  stated.  Nor  has  the  vendor  ever 
oflfered  to  sell  his  farm  below  the  price  stipulated.  He  has 
repeatedly  been  offered  more.  There  was  no  absolute  repre- 
sentation of  the  quantity  of  acres  contained  in  the  tract  by 
the  vendor  as  within  his  knowledge.  It  is  expressly  denied 
by  the  answer.  The  whole  evidence  of  both  parties  shows 
that  the  representation  of  quantity  was  but  an  expression  of 
belief,  founded  on  the  statement  contained  in  the  commission- 
ers' map.  The  fact  that  the  parties  went  together  to  a  sur- 
veyor for  a  computation  of  the  (quantity  sold  off  the  farm, 
shows  that  the  reliance  was  upon  the  map,  rather  than  upon 
any  representation  of  the  vendor.  The  case  rests  on  the 
ground  that  the  sale  was  made,  not  in  gross,  but  by  the  acre. 
Assuming  that  the  testimony  of  Mr.  Nickleson,  upon  this 
point,  is  strictly  true,  and  that  so  far  as  it  conflicts  with  the 
testimony  of  the  defendant,  it  is  entitled  to  full  credit,  it  fails 
to  establish  the  fact  that  the  sale  was  made  by  the  acre.  The 
utmost  that  it  can  be  deemed  to  establish  is,  that  the  negotia- 
tions for  the  sale  were  conducted  upon  that  basis.     The  con- 


MAY  TERM,  1863.  299 

Robert  v.  Hodges  and  Fuller. 

tract  iiself  is  in  writing.  It  bears  date  on  the  seventeenth 
of  December,  1860,  more  than  three  months  before  the  deed 
was  del/'vered.  By  it  Rose  agrees  to  sell,  and  Nickleson  to 
buy,  all  that  certain  farm  and  tract  of  land  owned  and  oc- 
cupied by  Rose,  in  the  township  of  Ewing,  containing  about 
one  hundred  and  fifteen  acres,  for  the  sum  of  eleven  thousand 
five  hundred  dollars.  There  is  no  mistaking  the  import  of 
the  contract.  Its  terms  are  clear  and  precise.  It  is  drawn 
by  experienced  counsel.  It  doubtless  embodies,  as  it  was 
designed  to  do,  and  as  the  law  conclusively  presumes  it  does, 
the  meaning  of  the  parties.  Whatever  the  previous  negotia- 
tions may  have  been,  the  contract  eventually  made  was  a 
contract  for  the  sale  of  a  specific  tract,  not  by  the  acre  but 
in  gross,  at  a  stipulated  price  for  the  whole  farm  owned  and 
occupied  by  the  vendor.  The  case  is  strongly  analogous  to 
that  of  Stebbins  v.  Eddy,  4  Mason  414,  and  in  principle  is 
virtually  controlled  and  decided  by  it. 
The  bill  must  be  dismissed. 

Cited  in  Andrews  v.  Rue,  5  Vr.  405. 


Sandeeson  Robert  vs.  Edward  F.  Hodges  and  William 
Henry  Fuller. 

1.  A  court  of  equity  has  the  power  to  aid  a  judgment  creditor  to  reach 
the  property  of  his  debtor,  either  by  removing  fraudulent  judgments  or  con- 
veyances which  obstruct  the  plaintiff's  remedy  under  the  judgment,  or  by 
appropriating  in  satisfaction  thereof,  rights  or  equitable  interests  of  the 
defendant,  which  are  not  the  subject  of  legal  execution. 

2.  If  a  creditor  seeks  the  aid  of  this  court  against  the  real  estate  of  hia 
debtor,  he  must  show  a  judgment  at  law  creating  a  lien  on  such  estate; 
if  he  seeks  aid  in  regard  to  the  personal  estate,  he  must  show  an  execution 
giving  him  a  legal  preference  or  lien  on  the  goods  and  chattels. 

3.  To  reach  an  equitable  interest  of  tlie  debtor,  the  creditor  must  first 
have  taken  out  execution  at  law,  and  have  required  it  to  be  levied  or  re- 
turned, so  as  to  show  a  failure  of  his  remedy  at  law.  Equity  will  only 
grant  its  aid  to  enforce  legal  process,  when  it  appears  that  the  legal  remedy 
of  the  complainant  is  exhausted. 

4.  A  creditor  at  large,  or  before  judgment  having  no  specific  lien  on  hit 


300  CASES  IN  CHANCERY. 

Robert  v.  Hodges  and  Fuller. 

debtor's  property,  is  not  entitled  to  the  interference  of  equity,  by  injunction, 
to  prevent  the  debtor  from  disposing  of  his  property  in  fraud  of  his  cred- 
itor. 

5.  An  attaching  creditor,  having  a  lien  upon  the  property  of  his  debtor 
by  authority  of  the  statute,  prior  to  the  recovery  of  judgment,  is  entitled 
to  the  aid  of  a  court  of  equity  to  enforce  his  legal  right. 

6.  If  the  court,  where  judgment  is  recovered,  have  jurisdiction  of  the 
person  of  tlie  defendant,  and  of  the  subject  matter  of  llie  suit,  its  conclu- 
siveness cannot  be  questioned  in  the  forum  of  another  state  where  it  ia 
Bought  to  be  enforced. 

7.  A  trust  deed  by  the  husband  for  the  benefit  of  the  wife,  purporting 
to  be  given  to  secure  certain  funds  received  from  the  wife,  but  where  no 
such  funds  were  actually  received  by  the  husband,  is  fraudulent  and  void 
as  against  creditors. 

8.  The  filing  of  exceptions  to  an  answer,  constitutes  no  technical  objec- 
tion to  the  dissolution  of  an  injunction.  The  court  will  look  into  them 
merely  to  ascertain  whether  they  relate  to  the  points  of  tlie  bill  upon 
which  the  injunction  rests. 

Tlie  complainant  is  an  attaching  creditor  of  Fuller,  one 
of  the  defendants.  The  bill  is  filed  for  the  benefit  of  him- 
self, and  of  such  of  the  other  creditors  of  Fuller  as  shall 
come  in  under  the  attachment,  and  as  shall  contribute  to  the 
expenses  of  this  suit.  The  material  allegations  of  the  bill 
are,  that  on  the  sixth  of  March,  1863,  Fuller  was  indebted 
to  the  complainant  in  about  the  sum  of  $22,140,  upon  judg- 
ments recovered  in  the  Court  of  Common  Pleas  of  the  county 
of  Hamilton,  in  the  state  of  Ohio.  That  the  defendant  being 
so  indebted,  and  being  a  resident  of  the  state  of  Massa- 
chusetts, the  complainant  sued  out  of  the  Circuit  Court  of 
the  county  of  Hudson,  a  writ  of  attachment  against  his  es- 
tate, by  virtue  of  which  the  sheriff  attached  fifteen  lots  of 
land  lying  in  Jersey  City,  the  property  of  the  defendant. 
That  the  defendant  became  seized  of  the  said  land  in  fee  in 
1854,  and  continued  in  possession  thereof  up  till  the  time  of 
filing  the  bill  of  complaint  in  this  cause;  but  in  order  to 
conceal  his  property,  and  to  defraud  his  creditors,  by  a  deed 
dated  on  the  first  of  January,  1858,  he  conveyed  the  said 
land  to  Edward  F.  Hodges,  of  Massachusetts,  bis  co-defendant, 
without  any  consideration  being  paid  therefor,  and  that  by 


MAY  TERM,  1863.  301 

Robert  v.  Hodges  and  Fuller. 

reason  of  the  said  conveyance,  the  complainant  is  unable 
effectually  to  obtain  tlie  benefit  of  the  said  attachment,  or  to 
enforce  the  same  against  the  lands  attached.  The  bill  prays, 
among  other  things,  that  the  conveyance  to  Hodges  may  be 
declared  fraudulent  and  void,  as  against  the  creditors  of 
Fuller,  and  that  the  defendants  may  be  restrained  by  injunc- 
tion from  aliening  or  encumbering  the  said  land.  Upon 
filing  the  bill  a  temporary  injuncition  was  issued  pursuant  to 
its  prayer.  Tlie  defendants  having  answered  the  bill,  now 
ask  a  dissolution  of  the  injunction  : — first,  on  the  ground  that 
there  is  no  equity  in  the  bill ;  and  secondly,  because  the  equity 
of  the  bill,  if  any  there  be,  is  fully  denied  by  the  answer. 

Jackson  and  Teese,  for  the  defendants,  in  support  of  the 
motion. 

Gilchrist,  for  complainant,  contra. 

Cases  cited  in  support  of  the  motion.  Young  v.  Frier,  1 
Stocld.  465  ;  Hunt  v.  Field,  Ibid.  36  ;  Mehille  v.  Brown,  1 
Harr.  363;  Martin  v.  Michael,  23  3Iiss.  50;  Ex  parte  Fos- 
ter, 2  Story  131  ;  Reeves  v.  Johnson,  7  H(dd.  R.  29  ;  Thomp- 
son V.  Eastbwrn,  1  Harr.  100  ;  Shinn  v.  Zimmerniann,  3  Zab. 
154  ;  Nix.  Dig.  4o,  §  Qd  ;  Edgar  v.  Clevenger,  1  Green's  Ch. 
R.  258  ;  S.  C.  2  Ibid.  259  ;  2  Storif's  Eq.  Jar.,  §  1216,  6/ 
Neate  v.  Marlborough,  3  Myhie  &  C.  407,  415  ;  Pallinger  v. 
Van  Emburgh,  1  Harr.  460  ;  Peacock^s  heirs  v.  Wildes,  3 
Halst.  R.nd;  N.  A.  Ins.  Co.  v.  Graham,  5  Sandf.  8.  C. 
jK.  204;  Garivood  v.  Garwood,  4:  Halst.  R.  193;  Dunham 
V.  Cox,  2  StocJcL  437. 

Cases  cited  contra.  Hunt  v.  Field,  1  Stocld.  36  ;  Wil- 
liams V,  Miehenor,  3  Slockt.  524  ;  Falconer  v.  Freeman,  4 
Sandf.  Ch.  R.  565;  Vreeland  v.  Bruen,  1  Zab.  214;  Mo- 
hawk Bank  V.  Atioaler,  2  Faige  54  ;  1  Stockt.  465  ;  JLd- 
sted   V.    Davison,  2    Stockt.    2l:i0 ;  Doughty   v.  King,  Ibid. 

V^OL.  I.  T 


302  CASES  IN  CHANCERY. 

Robert  v.  Hodges  and  Fuller. 

396  ;  Dunham  v.    Cox,  Ibid.  437 ;  Edgar  v.   Cleveiiger,  1 
Green's  Ch.  E.  258. 

The  Chancellor.  The  question  presented  by  the  first 
ground  of  objection  is,  whether  an  attaching  creditor,  before 
judgment,  is  entitled  to  the  aid  of  a  court  of  equity,  in  re- 
lieving him  from  the  operation  of  fraudulent  judgments  or 
conveyances  which  obstruct  the  effectual  operation  of  the 
attachment.  This  point  Jias  been  more  than  once  decided  in 
this  court,  after  argument  and  upon  full  consideration.  Hunt 
V.  Field,  1  StocJct.  36 ;  Williams  v.  Mlohener,  3  Stoold.  520. 

The  principle  was  adopted  as  early  as  the  case  of  Quack- 
enbush  v.  Van  Blarcom,,  decided  by  Chancellor  Pennington, 
Cited  in  1  Stockt.  42,  and  has  been,  it  is  believed,  since  that 
time  uniformly  recognized  and  acted  on.  It  was  intimated 
upon  the  argument  that  a  principle  thus  recognized  and 
adopted  in  practice,  ought  not  to  be  disturbed  upon  a  mere 
motion  to  dissolve  an  injunction.  I  still  think  that  it  ought 
not  to  be  regarded  as  an  open  question,  and  that  this  objection 
might  properly  be  disposed  of  by  the  mere  force  of  authority. 
It  is  better,  even  in  doubtful  matters,  that  the  doctrine  of 
stare  decisis  should  be  applied,  and  that  justice  should  be  ad- 
ministered upon  fixed  and  settled  principles,  and  not  upon 
the  v&rying  or  conflicting  opinions  of  successive  judges.  If, 
therefore,  I  regarded  the  principle  as  not  free  from  doubt,  I 
should  be  unwilling  to  disturb  it,  either  upon  this  motion,  or 
upon  demurrer.  But  as  the  point  has  been  twice  urged  upon 
the  attention  of  the  court,  I  have  examined  the  question  with 
more  care  than  I  should  have  otherwise  deemed  necessary, 
and  will  briefly  state  the  grounds  upon  which  the  doctrine 
of  the  court  rests. 

It  is  a  familiar  and  unquestioned  doctrine  of  equity,  that 
the  court  has  power  to  aid  a  judgment  creditor  to  reach 
the  property  of  his  debtor,  either  by  removing  fraudulent 
judgments  or  conveyances  which  obstruct  or  defeat  the 
plaiutifl''s  remedy  under  the  judgment,  or  by  appropriating 


MAY  TERM,  1863.  SOS 


Robert  v.  Hodges  and  Fuller. 


in  satisfaction  of  the  judgment,  rights  or  equitable  interests 
of  the  defendant,  whicli  are  not  the  subject  of  legal  execu- 
tion. Mlfford's  Eq.  PL,  by  Jeremy,  126  ;  Cooper^ s  Eq.  FL 
148. 

If  he  seeks  the  aid  of  the  court  against  the  real  estate  of 
his  debtor,  he  must  show  a  judgment  at  law  creating  a  lien 
on  such  estate;  and  if  he  seeks  aid  in  regard  to  the  personal 
estate,  he  must  show,  not  only  a  judgment  but  also  an  exe- 
cution, giving  him  a  legal  preference  or  lien  on  the  goods  and 
chattels.  Edgar  v.  Clevenger,  1  Green'' s  Ck.  R.  258 ;  Swayze 
V.  Swayze,  1  Stockt.  273  ;  Young  v.  Frier,  Ibid.  465 ;  Wig- 
gins V.  Armstrong,  2  Johns.  Ch.  R.  144  ;  Hendricks  v.  Rob' 
inson.  Ibid.  296 ;  Brinkerhoff  v.  Brown,  4  Johns.  Ch.  R. 
671,  678 ;  Williams  v.  Brown,  Ibid.  682 ;  Clarkson  v. 
Depeyster,  3  Paige  320 ;  Beck  v.  Burdeit,  1  Paige  305  ;  Har- 
rison V.  Battle,  1  Dev.  Eq.  R.  537. 

So  if  a  judgment  creditor  seeks  the  aid  of  a  court  of  equity 
to  reach  the  equitable  interest  of  his  debtor  in  lands,  or 
goods  or  chattels,  he  must  first  have  taken  out  execution  at 
law,  and  required  it  to  be  levied  or  returned,  so  as  thereby 
to  show  a  failure  of  his  remedy  at  law.  Equity  will  not,  as 
of  course,  grant  its  aid  to  enforce  legal  process.  It  must 
first  appear  that  the  legal  remedy  of  the  complainant  is  ex- 
hausted. Edgell  V.  Haywood,  3  Atk.  352 ;  Clarkson  v. 
Depeyster,  3  Paige  320  ;   Cuyler  v.  Moreland,  6  Paige  273. 

It  results  as  a  necessary  consequence  from  these  princi- 
ples, that  a  creditor  at  large,  or  before  judgment,  having  no 
specific  lien  on  his  debtor's  property,  is  not  entitled  to  the 
interference  of  equity  by  injunction,  to  j)revent  the  debtor 
from  disposing  of  his  property  in  fraud  of  his  creditor. 
Angell  v.  Draper,  1  Vernon  399  ;  Shirley  v.  Watts,  3  Atk. 
200 ;  Wiggins  v.  Armstrong,  2  Johns.  Ch.  R.  144 ;  Hen- 
dricks V.  Robinson,  Ibid.  296 ;  Mitford's  Eq.  PL,  by  Jeremy, 
125;   Cooper's  Eq.  PL  149. 

Under  the  English  statute  the  creditor  acquires  no  lien 
upon  the  land  of  his  debtor,  legal  or  equitable,  by  virtue  of 
his  judgment.     The  judgment   creditor   is    entitled    by   the 


304  CASES  IN  CHANCERY 


Kobert  v.  Hodges  and  Fuller. 


statute  to  a  writ  of  elegit,  by  virtue  of  which  one  half  of 
the  defendant's  freehold  lands  are  delivered  to  him  to  hold, 
till  out  of  the  rents  and  profits  the  debt  is  satisfied.  The 
title  he  acquires  is  derived  from  the  statute.  He  becomes 
"tenant  by  elegit,"  by  virtue  of  the  writ.  His  interest  in 
the  land  is  an  "  estate  by  elegit."  3  Bl.  Com.  418  ;  2  Ihid. 
161. 

The  effect  of  the  proceeding  under  the  writ  is  to  give  the 
creditor  a  legal  title  which  he  may  enforce  at  law  by  eject- 
ment. Unless  the  creditor  sues  out  the  writ,  he  neither 
acquires  a  title  to,  or  lien  upon  the  land,  nor  can  he  be  said 
to  have  exhausted  his  remedy  at  law.  Upon  these  grounds 
it  has  been  held  that  a  court  of  equity  in  England  will  not 
interfere  to  aid  a  judgment  creditor  to  reach  his  debtor's 
equitable  interest  in  real  estate,  unless  he  first  sue  out  a  writ 
of  elegit.  Neate  v.  The  Duke  of  Marlborough,  9  Sim.  60 ; 
3  Mylne  &  Craig  407. 

Upon  the  authority  of  this  decision  of  Lord  Cottenham, 
in  Neate  v.  The  Duke  of  3Iarlbo)vugh,  it  was  held  by  the 
Superior  Court  of  New  York,  that  a  judgment  creditor  can- 
not file  a  bill  to  set  aside  conveyances  which  are  alleged  to 
be  an  obstruction  to  an  execution,  until  such  execution  has 
been  actually  issued.  North  Amer.  Ins.  Co.  v.  Graham,  5 
Sandf.  S.  C.  R.  197. 

The  latter  decision  proceeds  upon  the  assumption  tliat 
there  is  a  perfect  analogy  between  an  elegit  in  England,  and 
a^.  fa.  in  the  state  of  New  York.  The  analogy  certainly 
does  not  hold  between  the  elegit  in  England,  and  the  fi.  fa. 
under  the  laws  of  this  state,  and  the  decision  cannot  be  safely 
regarded  as  authority  here. 

But  all  the  cases  proceed  upon  the  principle  that  the  judg- 
ment creditor,  in  order  to  be  entitled  to  the  aid  of  a  court  of 
equity  in  enforcing  his  remedy  by  removing  obstructions  from 
his  path,  must  have  acquired  title  to,  or  a  lien  upon,  the  spe- 
cific thing  against  wiiich  he  seeks  to  enfon-e  his  judgment. 
He  must  complete  his  title  at  law  before  coming  into  equity. 
Unless  he  has  established  his  title  to,  or  lien  upon,  the  pro- 


MAY  TERM,  1863.  305 

Robert  v.  Hodges  and  Fuller.  * 

perty  of  his  debtor,  he  has  no  right  to  interfere  with  his 
debtor's  disposition  of  it.  Such  lien  the  creditor  does  acquire 
under  our  law  by  the  service  of  the  writ  of  attachment.  The 
law  recognizes  the  claim  of  the  attaching  creditor,  after  it  has 
been  verified  by  affidavit  as  prescril)ed  by  the  statute,  as  a 
subsisting  debt  for  the  purpose  of  creating  the  lien.  Having 
that  lieu  by  authority  of  the  statute,  prior  to  the  recovery  of 
judgment,  he  is  entitled  to  the  aid  of  a  court  of  equity  to  en- 
force his  legal  right.  The  statute,  for  various  purposes,  re- 
cognizes and  enforces  this  right,  although  it  may  be  that  the 
claim  may  eventually  prove  to  be  unfounded. 

The  objection  to  the  interference  of  a  court  of  equity,  that 
the  claim  of  the  attaching  creditor  is  not  ascertained,  if  it  be 
entitled  to' any  consideration,  can  have  no  application  in  the 
present  case,  for  the  plaintiff's  claims  against  the  defendant 
have,  in  fact,  been  established  byjudguient.  The  fact  that 
the  judgment  was  recovered  in  another  state,  does  not  impair 
the  conclusiveness  of  the  judgment  as  to  the  amount  due.  If 
the  court,  where  the  judgment  is  recovered,  have  jurisdiction 
of  the  person  of  the  defendant,  and  of  the  subject  matter  of 
the  suit,  its  conclusiveness  cannot  be  questioned  in  the  forura 
of  another  state  where  it  is  sought  to  be  enforced.  Moulin  v. 
Insurance  Co,.,  4  Zab.  222. 

The  better  opinion  is,  that  a  foreign  judgment  is  not  ex- 
aminable in  tiie  courts  of  Westminster  Hall.  2  Stoi-y^s  Eq. 
Jar.,  §  1576. 

It  is  further  urged  that  the  injunction  should  be  dissolved, 
because  the  equity  of  the  bill  is  fully  denied  by  the  answer. 

The  bill  charges  that  the  lands  attached  are,  in  fact,  the 
property  of  Fuller,  and  that  they  were  conveyed  away  with- 
out consideration,  to  defVaud  his  creditors.  The  material 
facts  disclosed  by  the  pleadings  are,  that  in  January,  1857, 
the  complainant  was  a  judgment  creditor  of  Fuller,  the  de- 
fendant, to  an  amount  exceeding  $20,000.  That  Fuller  then 
was,  and  since  1854  had  been  the  owner  in  fee,  and  in  pos- 
session of  the  lands  attached.  That  his  title  to  said  lands 
was  kept  secret,  and  that  the  deed  was  not  recorded  until  the 


306  CASES  IN  CHANCERY. 

Robert  v.  Hodges  and  Fuller. 

sixteenth  of  May,  1857,  after  he  had  parted  with  the  legal 
title,  and  was  sent  to  the  clerk's  office  to  be  recorded  at  the 
same  tinae  with  the  deed  from  Fuller  to  Hodges.  That  by 
deed  dated  on  the  first  of  January,  1857,  two  days  after  the 
recovery  of  the  complainant's  first  judgment,  and  twenty 
days  before  the  recovery  of  his  second  judgment.  Fuller 
conveyed  the  said  lands  to  Hodges,  an  attorney-at-law,  and 
the  professional  adviser  of  Fuller,  without  any  valuable 
consideratioa  whatever  being  paid  therefor,  although  the  deed 
expresses  a  consideration  of  $22,000.  That  at  the  date  of  the 
conveyance,  Hodges  executed  to  Fuller  a  mortgage  for  $11,- 
050,  which,  together  with  a  mortgage  executed  by  Fuller  to 
bis  grantors  fov  $10,950,  and  which  continued  a  subsisting 
encumbrance  when  the  land  was  conveyed  to  Hodges,  would 
make  the  entire  consideration  of  $22,000,  expressed  in  said 
deed.  That  the  mortgage  from  Hodges  to  Fuller  for 
$11,050,  was  cancelled  on  the  fourth  of  September,  1862, 
although  Hodges  never  paid  the  said  mortgage  or  any  part 
thereof. 

These  facts  are  not  denied  by  the  defendants  in  their  an- 
swers, and,  unexplained,  they  fully  sustain  the  charge  of 
fraud  made  by  the  bill. 

The  defence  is,  that  the  conveyance  made  by  Fuller  to 
Hodges  was  in  fact  made  in  trust  for  the  wife  of  Fuller,  and 
as  a  security  for  inoney  which  he  had  received,  or  was  about 
to  receive,  being  the  avails  of  lands  owned  by  her  in  or  near 
Chicago.  The  case,  as  presented  by  the  separate  answers  of 
the  defendants,  is  open  to  exception. 

It  does  not  appear  that  Fuller,  prior  to  the  service  of  the 
writ  of  attachment,  had  received  any  portion  of  his  wife's 
funds.  This  is  the  corner  stone  of  the  defence,  upon  which 
the  entire  structure  rests.  For  if  the  husband  did  not  re- 
ceive the  funds  of  the  wife,  even  if  the  conveyance  was  made 
for  her  benefit,  it  was  fraudulent  and  void  as  against  credit- 
ors. Hodges,  to  whom  the  conveyance  was  made,  admits 
that  he  does  not  know  of  his  own  knowledge,  that  Fuller 
received  funds  belonging  to  his  wife.     Upon  this  point  he 


MAY  TERM,  1863.  307 

Robert  v.  Hodges  and  Fuller. 

answers,  solely  upon  information  and  belief,  that  the  husband 
received  about  the  sum  of  $10,000.     Fuller,  the  husband,  by 
his  answer,  sworn   to  on  the  twenty- seventh  of  June,  1863, 
Bays  that  he  hath  received  funds  belonging  to  his  wife,  avails 
of  the  sale  of  her  real   estate,  to   the   sum  of  at  least  tea 
thousand  dollars.     This  may  be  true,  and  yet  every  dollar  of 
the  money  may  have  been  received  after  the  bill  iu  thi-s  cause 
was  filed.     The  answer   is  silent  as   to   the  time   when  the 
money  was  advanced.     Hodges,  in   his  answer,  states  that  at 
the  time  when  the  mortgage  was  made  by  him,  he  was  in- 
formed and  then  believed,  and  still  believes  that  Fuller  re- 
ceived of  his   wife's   money  the  sum  of  about   ten  thousand 
dollars.     This  is  clearly  a  mistake,  and  is  in  direct  conflict 
with  the  answer  of  Fuller,  and  with   previous  statements  in 
Hodges'  own  answer.     Fuller,  in  his  answer,  states  that  his 
wife  was  about  to  receive  certain  funds  arising  from  the  sale 
of  a  portion  of  her  lands,  which   she  was   willing  should  be 
used  by  Fuller,  and   that  thereupon,  on  consultation,  it  was 
agreed  that  Hodges  should  take  the  title  and  give  his  notes 
and  mortgage,  which  should  be  held  as  security  for  the   said 
funds,  as  the  same   should  be  received  by  Fuller.     Hodges 
himself  says,  that  after  conference  between. himself  and  Ful- 
ler, he  proposed  that  the  lands   should  be  conveyed,  and  a 
mortgage  given   for   the   purchase   money,  which   mortgage, 
and   the  notes  secured   thereby,  should  be   held  in   trust  for 
the  wife  when  the  said   money  should  be   taken   by  Fuller. 
This  proposition  was  acted  upon,  and,  at  the  request  of  Ful- 
ler, Hodges   took   the  conveyance,  and   gave   the  notes   and 
mortgage  to  secure  the  same.     The  statement,  therefore,  of 
Hodges,  that  at  the  time  the  mortgage  was  given   he  was  in- 
formed, and   then    believed  that   Fuller   had    received  of  his 
wife's  money  the  sum  of  about  ten  thousand  dollars,  must  be 
erroneous.     It   is  true,  that  afterwards  the   notes  and  mort- 
gage  were   cancelled,  and   an    arraiigeuK'nt    made   by    which 
Hodges  acted  as  the  owner   of  the   land,  as  trustee  of  Mrs. 
Fuller.     But   this  was   not  the  original   arrangement.     The 
trustee  of  Mrs.  Fuller,  if  she  was  iu  fact  the  equitable  owner, 


308  CASES  IN  CHANCERY. 

Eobert  v.  Hodges  and  Fuller. 

would  not  have  given  a  mortgage  on  the  land  to  be  held  in 
trust  for  herself.  But  she  could  not  have  been  the  equitable 
owner,  for  the  trust  under  the  deed,  if  any  such  was  intended 
to  be  created,  was  utterly  void,  not  having  been  manifested 
in  writing.  The  answers  do  not  show  satisfactorily  that  ten 
thousand  dollars,  or  any  other  sum,  was  advanced  by  the 
wife  out  of  her  funds,  for  the  use  of  her  husband,  either  at 
the  time  the  mortgage  was  given,  or  at  any  other  time  prior 
to  the  service  of  the  writ  of  attachment. 

There  are  other  circumstances  connected  with  the  trans- 
action, as  disclosed  by  the  answers,  which  are  open  to  grave 
observation.  As  already  intimated,  there  was  no  written 
declaration  or  manifestation  of  the  trust.  The  trust,  if  any, 
was  a  secret  one,  and  so  remained  for  years  after  the  de- 
livery of  the  title.  The  deed  of  conveyance  from  Fuller  to 
Hodges  is  absolute  upon  its  face.  The  land  was  purchased 
by  Fuller  of  Coles,  in  1854,  for  $14,G00.  It  was  conveyed  by 
Fuller  to  Hodges,  for  the  alleged  consideration  of  $22,000, 
subject  to  a  mortgage  of  $10,950,  given  by  Fuller  to  Coles, 
which  constituted  a  part  of  the  price,  and  which  Hodges  per- 
sonally assumed  to  pay.  For  the  balance  of  the  considera- 
tion, $11,050,  Hodges  gave  his  two  notes,  at  three  and  six 
years  (whether  with  or  without  interest  does  not  apjiear), 
secured  by  a  mortgage  upon  the  land.  The  notes  and  mort- 
gage are  given,  not  to  the  wife,  for  whose  security  they  are 
alleged  to  have  been  given,  nor  to  tiie  trustee  of  the  wife, 
but  are  made  and  delivered  to  the  husband,  who  was  to  be 
the  debtor  of  the  wife.  The  whole  arrangement  was  made 
by  the  procurement  of  the  husband,  between  himself  and  his 
intimate  friend  and  legal  advisor,  who  became  the  grantee. 
Neither  the  wife  herself,  nor  the  trustee  of  the  wife,  appears 
to  have  participated  in  any  degree  in  the  arrangement,  or  to 
have  been  consulted  concerning  it.  All  this  is  perfectly 
natural  and  consistent,  if  the  whole  transaction  Was  designed 
as  a  cover  for  the  husband's  property,  but  it  seems  in  the 
highest  degree  improbable,  that  such  a  transaction  should, 
under  the  advice  of  legal  counsel,  have   beeu  designed  as  a 


MAY  TERM,  1863.  309 

Eobert  v.  Hodges  and  Fuller. 

bona  fide  security  for  the  separate  estate  of  the  wife,  advanced 
by  her  or  her  trustee  for  the  use  of  her  husband.  Aside  from 
the  extraordinary  terms  of  the  arrangement,  viewed-  as  a  se- 
curity for  the  debt  of  the  husband,  the  utter  inadequacy  of 
the  security  for  the  purpose  for  which  it  is  alleged  to  have 
been  designed,  is  enough  to  cast  upon  the  whole  transaction 
grave  suspicion,  and,  to  entitle  the  comj)lainant  to  the  benefit 
of  a  full  investigation. 

The  answer  of  Fuller,  moreover,  admits  that  the  mortgage 
given  to  him  by  Hodges,  in  September,  1862,  nearly  six 
years  after  its  execution,  was  caused  to  be  cancelled  of  record 
by  himself,  by  direction  of  Hodges.  We  have,  then,  the  ad- 
mitted fact  that  this  mortgage  remained  in  the  hands  of  the 
husband,  under  his  legal  control,  nearly  six  ycai's  after  its 
execution,  and  after  its  pretended  assignment  and  delivery  to 
the  trustee  of  the  wife  as  a  security  for  his  debt.  The  answer 
alleges,  indeed,  that  it  had  never  been  assigned  by  recorded 
writing,  though  it  was  in  reality  assigned  and  delivered  to 
Richard  F.  Fuller,  the  trustee  of  the  wife,  with  the  notes,  on 
the  day  of  its  date.  But  was  it  assigned  by  any  writing,  re- 
corded or  unrecorded  ?  Was  there  a  legal,  valid  transfer, 
either  of  the  notes  or  of  the  mortgage,  to  Richard  F.  Fuller, 
(who  is  admitted  to  be  a  brother  of  the  defendant)  in  trust  for 
the  wife?  If,  in  reality,  he  held  the  mortgage  for  the  wife's 
benefit,  why  was  it  left  in  the  possession,  and  under  the  control 
of  the  husband  ? 

The  subsequent  contracts,  alleged  in  the  answers  to  have 
been  made  in  regard  to  the  land  by  Hodges,  with  the  assent 
of  the  wife,  do  not,  in  my  judgment,  strengthen  the  defend- 
ant's case.  They  would  seem  to  enure  to  the  benefit  of  the 
husband  rather  than  of  the  wife,  and  to  countenance  the 
charge  that  the  name  of  the  wife  is  used  as  a  mere  cover  for 
the  fraud  of  the  husband.  But  it  is  unnecessary  to  j)ursue 
the  subject  further.  It  is  not  necessary,  nor  is  it  intended, 
to  express  any  opinion  upon  the  real  merits  of  the  case  as  it 
may  be  made  to  appear  upon  the  evidence.  The  wife  may 
be  a  bona  fide  creditor  of  the  husband,  and   may  be  entitled 


310  CASES  IN  CHANCERY. 

Burnham  et  ux.  et  al.  v.  Dalling. 

to  protection.  It  is  enough  to  say  that  as  the  case  now  stands, 
tlie  equity  of  the  bill  is  not  fully  answered.  The  complain- 
ant is  entitled  to  a  full  disclosure  and  thorough  investigation 
of  the  alleged  equitable  interest  of  the  wife,  and  of  those 
claiming  under  her. 

The  answers  do  not  contain  such  a  full  denial  of  the  equity 
of  the  complainant's  bill,  as  entitles  the  defendants  to  a  disso- 
lution of  the  injunction.  The  filing  of  exceptions,  by  our 
practice,  constitutes  no  technical  objection  to  the  dissolution 
of  the  injunction.  The  court  will  look  into  them,  merely  to 
ascertain  whether  they  relate  to  the  points  of  the  bill  u{)en 
which  the  injunction  rests.  Doe  v.  Roe,  1  Hoplc.  276;  1 
Hoffman's  Ch.  Pr.  357,  note  1  ;  1  Barb.  Ch.  Fr.  642. 
The  motion  is  denied  with  costs. 

Cited  in  Curry  v.  Glass,  10  C.  E.  Gr.  109  :  Davis.v.  Dean,  11  C.  E.  Or. 
437 ;  Bigelow  Blue  Stone  Co.  v.  Macjee,  12  C.  E.  Gr.  393. 


Elbert  L.  Burnham  and   wife  and  others,  m.  Robert 

Dalling. 

1.  It  is  within  the  power  of  a  court  of  equity  to  consolidate  actions,  with 
or  witliout  the  consent  of  the  coiui)Iainanti;. 

2.  The  order  for  consolidation  is  not  of  right,  hut  is  matter  of  discretion, 
and  upon  sucli  terms  as  the  court  may  direct. 

3.  Where  a  guardian  has  failed  to  account  as  required  Iiy  Luv,  and  sets 
up  a  prior  account  as  a  bar  to  accounting  in  this  court,  and  a  decree  for  au 
account  is  made,  the  complainant  will  be  allowed  cosis  up  lo  the  decree. 

4.  A  party  in  interest  having  died  since  tlie  argument,  and  before  the 
signing  of  the  decree,  the  decree  and  orders  in  the  cause  should  be  signed 
and  filed  as  of  the  diite  of  the  argument. 

5.  An  order  for  that  purpose  is  necessary. 


Gilchrist,  for  complainants,  ex  parte. 

The  Chancellor.  Separate  bills  were  filed  by  three 
children  of  William  Bale,  against  the  defendant  as  their 
guardian,  for  an  account.  A  decree  was  ordered  in  each  case 
that  the  defendant  should  account.     The  court  is  now  asked 


MAY  TERM,  1863.  311 


Burnham  et  ux.  et  al.  v.  Dalling. 


by  the  complainants  to  consolidate  the  suits.  Our  statute. 
which  authorizes  the  consolidation  of  suits  at  law  at  the 
instance  of  the  defendant,  does  not  extend  to  suits  in  equity. 
Nix.  Dig.  659,  §  59. 

Books  of  equity  practice  are  silent  on  the  suhjoct.  In 
The  Warden  and  Fellows  of  3Ianchester  College  v.  I.-iherwood 
2  Simons  476,  sixteen  bills  had  been  filed  for  tithes,  by  the 
same  plaintiffs  against  different  defendants,  The  same  de- 
fence having  been  set  up  in  all  the  causes,  a  motion  was 
made  on  the  part  of  the  defendants  to  consolidate  the  actions, 
or  that  one  cause  only  might  be  prosecuted  to  a  hearing,  and 
the  proceedings  in  the  other  causes  stayed,  the  defendants 
undertaking  to  be  bound  by  the  decree  in  the  first  cause. 
The  motion  w-as  denied,  the  Vice  Chancellor  saying  that 
neither  in  the  court  of  equity  nor  in  the  Court  of  Exchequer, 
had  the  practice  prevailed  of  compelling  the  complainant  to 
consolidate  his  different  suits  against  several  defendants. 
Similar  decisions  were  made  in  the  Court  of  Exchequer  in 
the  cases  of  Forman  v.  Blake,  7  Price  654,  and  Foreimm  v. 
Soidhroood,  8  Price  572.  In  the  case  o9  Forman  \.  Blake, 
Chief  Baron  Richards  said  :  "  I  have  never  heard  of  an  orde?-, 
in  the  course  of  my  experience,  for  consolidating  causes  in 
equity,  nor  can  I  conceive  upon  what  principle  it  can  be  done." 

This  opinion  is  the  more»remarkable,  as  in  the  earlier  case 
of  Keighlcy  v.  Bron-u,  16  Vesey  344,  a  similar  motion  was 
made  on  the  part  of"  the  defendants  to  consolidate  several 
actions,  and  both  Sir  Samuel  Roniilly,  by  whom  the  motion 
was  made,  and  the  Chancellor  (Lord  Eldon)  speak  of  the 
practice  as  a  familiar  one.  The  only  question  seems  to  have 
been  whether  it  was  a  speciijt  application,  or  of  course.  And 
the  next  day  the  Lord  Chancellor  said  he  had  consulted 
Baron  Thompson  of  the  Exchequer,  who  had  no  idea  that  the 
motion  was  of  course,  though  sometimes  made  under  special 
circumstances.  The  caution  with  which  the  Court  of  Chan- 
cery in  England  interferes  with  the  conduct  of  a  suit,  will  be 
found  exemplified  by  the  cases  of  Camming  v.  Slater,  1 
Younge  &  Coll.  484,  and  Godfrey  v.  Maw,  Ibid.  485. 


312  CASES  IN  CHANCERY. 

Bnrnliam  etnx.  et  al.  v.  Dalling. 

Of  the  ))o\ver  of  a  court  of  equity  to  consolidate  actions, 
with  or  without  the  consent  of  the  complainant,  I  entertain 
no  doubt.  It  seems  to  me  to  be  a  power  over  the  conduct  of 
suitors,  resting  upon  the  clearest  principles,  and  absolutely- 
essential  to  prevent  scandalous  abuses,  and  to  protect  defend- 
ants against  gross  oppression.  At  common  law,  the  consoli- 
dation of  suits  is  a  recognized  and  familiar  exercise  of 
power.  Our  statute  confers  no  new  authority,  but  is  merely 
declaratory  of  what  the  common  law  is.  The  common  law 
will  not  endure  a  multiplicity  of  suits  growing  out  of  the 
same  title,  where  the  defence  in  all  is  the  same.  2  Sell.  Pr. 
143;  2  Archb.  Pr.  180. 

In  Cecil  v.  Brigges,  2  T.  R.  639,  where  both  of  the  causes 
of  action  might  have  been  comprised  in  one,  the  order  was 
made  with  costs. 

The  order  for  consolidation  is  not  of  right,  but  is  matter  of 
discretion,  and  upon  such  terms  as  the  court  may  direct. 
Den  V.  Kimble,  4  Halst.  R.  337  ;  Wodey  v.  Glenhvorth,  5 
Halst.  R.2U. 

The  same  reason*  exists  for  the  consolidation  of  suits  in 
equity  as  at  law,  though  from  the  nature  of  the  proceeding, 
more  caqjtiou  may  be  required  in  the  exercise  of  the  power 
by  this  court. 

In  The  Executors  of  Conover*  v.  Conover,  Saxton  412, 
though  no  formal  aj)plication  was  made  for  consolidation, 
Chancellor  Vroom  recommended  it  as  a  measure  that  would 
save  costs  and  delay.  In  that  case,  the  bills  were  filed  by 
the  executors  of  two  different  estates.  The  complainants,  in 
the  opinion  of  the  Chancellor,  were  not  only  at  liberty  to 
proceed  as  they  did,  by  separate  suits,  but  prudent  and  cor- 
rect in  doing  so;  yet,  after  a  decree  for  account,  he  declared 
his  conviction  that  great  benefit  would  result  from  con- 
solidating them,  so  that  one  investigation  and  report  of  the 
master,  and  one  decree  might  settle  both.  In  that  case,  as  in 
this,  as  the  suit  was  in  reality  by  different  complainants, 
there  might  have  been  serious  objections  to  consolidating 
without  consent.     As  a  written  consent  to  the  order  for  con- 


MAY  TERM,  1863.  313 

Eandolph  et  al.  v.  Daly  et  al. 

solidatiou  is  filed  in  this  case,  tliere  can  be  no  difficulty  on 
that  point. 

It  is  worthy  of  notice  that  the  mode  of  consolidation  at 
law,  is  not  by  uniting  tlie  several  actions  in  one  entire  re- 
cord. 2  Archb.  Prac.  180  ;  Den  v.  Kimble,  4  Halst.  B. 
337  ;   Clason  v.  Church,  1  Johns.  Cas.  29. 

The  order  for  consolidation  does  not  necessarily  imply  that. 

The  complainants  are  entitled  to  costs  up  to  the  decree  for 
an  account.  The  defendant  failed  to  account  as  required  by 
law.  He  set  uj)  by  way  of  bar  to  accounting  in  this  court, 
an  account  exhibited  in  1853,  and  failed  in  his  defence.  The 
practice  is,  in  similar  cases,  to  allow  the  complainants  costs 
up  to  the  decree.  Anon.  4  Mad.  R.  273  ;  Beames'  Costs  in  Eq. 
12  ;  3  DnnielVs  Ch.  Fr.  1 550  ;  Seaton  on  Decrees,  44,  49,  20(j. 

The  wife  of  one  of  the  complainants,  who  is  a  party  in  in- 
terest, died  since  the  arijuraent  and  before  the  siscnins:  of  the 
decree.  The  decree  and  orders  in  the  cause  should  be  signed 
and  filed  as  of  the  date  of  the  argument.  Campbell  v.  Mesier, 
4  Johns.  Ch.  R.  334 ;  Vroom  v.  Ditmas,  5  Paige  528. 

An  order  for  that  purpose  is  necessary.  2  DanieWs  Chan. 
P/-.  1219  ;  Seaton  on  Decrees,  393,  394. 


Thompson  E.  F.  Randolph  and  Robert  J.  Randolph, 
partners,  &c.,  vs.  WiLLiAii  D.  A.  Daly  and  others. 

1.  Where  the  Pole  design  of  the  bill  is  to  have  tlie  individual  property 
of  one  pariner,  alleged  to  have  been  fraudulently  conveyed  away  by  him, 
applied  in  satisfaction  of  a  judgment  against  the  firm,  another  paitner 
froni-whom  no  discovery  is  sought,  and  ng;iinst  whom  no  relief  is  prayed, 
is  neither  a  necessary  nor  a  proper  party. 

2.  A  wife  is  a  proper  party  to  a  bill  filed  to  set  aside  conveyances  of  the 
V.uSband's  property  made  to  her,  or  in  which  she  has  joined,  and  which 
are  charged  to  have  been  voluntary  and  fraud ident  as  against  creditors  of 
the  husband. 

3.  It  is  no  cause  of  demurrer  to  a  bill  to  set  aside  fraudulent  conveyances 
made  by  a  debtor,  that  a  defendant,  to  whom  part  of  the  property  has 
been  conveyed,  has  no  connection  with  other  fraudulent  transactions  of  the 


314  CASES  IN  CHANCERY. 

Randolph  et  al.  v.  Daly  et  al. 

debtor.  If  the  defendant  is  a  necessary  party  to  some  part  of  the  case  as 
stated,  he  cannot  object  that  he  has  no  interest  in  oilier  transactions  con- 
stituting a  part  of  tiie  entire  case. 

4.  A  bill  filed  by  an  execution  creditor  is  not  demurrable  for  multifari- 
ousness because  it  seeks  to  set  aside  fraudulent  conveyances,  and  at  the 
sanje  time  to  reach  other  property  of  tlie  debtor,  which  is  not  the  subject 
of  execution  at  law,  and  respecting  which  a  discovery  is  prayed. 

5.  The  transactions  charged,  being  parts  of  a  series  of  acts  all  tending 
to  defeat  the  plaintiff's  remedy  at  law,  may  properly  be  united  in  the 
game  bill. 

6.  A  joint  execution  upon  a  judgment  for  a  partnership  debt,  may  be 
executed  not  only  against  the  partnership  property,  but  against  the  sepa- 
rate estate  of  each  partner,  for  each  is  answerable  for  the  whole,  and  not 
merely  for  his  proportionate  part  of  the  debt. 

7.  A  court  of  equity  will  protect  and  enforce  the  legal  right  of  an  exe- 
cution creditor  at  law  to  levy  upon  the  separate  property  of  each  partner 
of  a  firm. 

8.  To  entitle  an  execution  creditor  to  relief,  it  must  appear  by  the  bill 
that  he  has  exhausted  his  remedy  at  law,  and  that  the  aid  of  this  court  is 
necessary  to  enable  him  to  obtain  satisfaction  of  his  judgment. 

9.  The  return  of  the  sheriff  that  the  defendants  are  not,  either  in  their 
partnership  name  or  as  individuals,  seized  or  possessed  of  any  estate,  real 
or  personal,  which  could  be  seized  or  taken  by  virtue  of  the  execution, 
must  be  taken  as  prima  facie  evidence  of  the  fact,  and  is  suflicient  to  give 
the  complainants  a  standing  in  this  court. 

10.  Certainty  to  a  common  intent  is  all  that  is  ordinarily  required  in 
pleadings  in  equity. 

SlaigJd,  for  defendants,  in  support  of  the  demurrer, 
Winjleld,  for  complainants,  contra. 

The  Chancellor.  To  a  bill  filed  by  execution  creditors 
of  the  firm  of  Daly  &  Burnet,  to  obtain  satisfaction  of  the 
judgment  out  of  the  individual  projierry  of  William  D.  A. 
Daly,  one  of  the  partners,  the  detcndants  demur. 

1.  Because  Adolphus  E,  Burnet,  the  other  partner  of  the 
firm  of  Daly  &  Burnet,  is  a  necessary  party.  The  sole  de- 
sign of  the  bill  is  to  have  the  individual  property  of  Daly, 
one  of  the  partners,  which  is  alleged  to  have  been  fraudu- 
lently conveyed  away  by  him,  applied   in  satisfaction  of  the 


MAY  TERM,  1863.  315 

Randolph  et  al.  v.  Daly  et  al. 

judgment  against  the  firm.  No  francl  or  concealment  of 
projjerty  is  imputed  to  Burnet;  no  discovery  is  sought  from 
him  ;  no  relief  is  ueedeci  or  asked  against  him  individually,  or 
as  a  member  of  the  firm.  He  is  neither  a  necessary  nor  a 
proper  party. 

2.  The  second  ground  of  demurrer  is  that  the  wife  of 
Daly  is  not  a  proper  party.  The  bill  charges  that  the  real 
estate  in  controversy  was  formerly  owned  by  Daly,  and  was 
conveyed  by  him  and  his  wife  to  a  third  party,  and  by  their 
grantee  was  reconveyed  to  the  wife,  and  by  the  wife  of  Daly 
to  his  father,  in  whom  the  legal  title  remained  at  the  time 
of  filing  the  bill.  All  these  conveyances  are  charged  to  have 
been  voluntary,  and  fraudulent  as  against  the  creditors  of 
the  husband.  If  fraudulent,  the  wife  was  a  participant  or 
agent  in  the  fraud.  The  bill  seeks  to  avoid,  as  .well  the  title 
to  her  as  the  title  from  her.  The  complainants  are  entitled 
to  a  discovery  from  the  wife,  as  well  as  from  the  husband, 
touching  the  consideration  of  the  deeds  and  the  alleged  fraudu- 
lent purpose  for  which  they  were  executed. 

3.  The  third  ground  of  demurrer  is  that  the  bill  is  multi- 
farious as  to  Edward  Daly,  inasmuch  as  it  unites  with  the 
charges  of  fraud  in  the  conveyances  to  him,  other  charges  of 
fraudulent  concealment  of  property  on  the  part  of  William  D. 
A.  Daly,  with  which  Edwartl  Daly  has  no  concern  or  alleged 
connection.  But  it  is  well  settled  that  on  a  bill  to  set  aside 
fraudulent  conveyances  made  by  a  debtor,  and  for  a  discovery 
of  iiis  property,  it  is  no  objection  that  a  defendant,  to  whom 
a  portion  of  the  property  has  been  conveyed,  has  no  connection 
with  other  fraudulent  transactions  of  the  debtor.  The  case 
against  the  debtor  is  entire.  If  the  defendant  is  a  necessary 
party  to  some  part  of  the  case  as  stated,  he  cannot  object 
that  he  has  no  intei^st  in  other  transactions  which  constitute 
a  part  of  the  entire  cas6.  Attorney  General  v.  The  Corp. 
of  Poole,  4  3Iylne  &  C  31  ;  Boyd  v.  Hoyt,  5  Paige  78  ; 
Brinherlioff  v.  Broion,  4  Johns.  Ch.  R.  671. 

It  is  further  ur(>:ed  that  the  bill  is  multifarious  in  its 
character   as  to  the  debtor  himself,  because  it   not  only  seeks 


316  CASES  IN  CHANCERY. 


Randolph  et  al.  v.  Daly  et  al. 


to  remove  obstructions  in  the  way  of  the  complainants' 
remedy  at  law  by  setting  aside  fraudulent  conveyances,  but 
also  seeks  to  reacii  other  property  of  tiie  debtor,  which  is  not 
the  subject  of  execution  at  law,  and  in  regard  to  which  a 
discovery  is  prayed.  But  this  constitutes  no  ground  of 
demurrer.  The  sole  purpose  of  the  bill  is  to  obtain  the 
aid  of  this  court  in  enforcing  satisfaction  of  the  complain- 
ants' judgment,  out  of  the  property,  real  and  personal,  of 
the  defendant,  which  is  alleged  to  have  been  fraudulently 
conveyed,  or  to  be  concealed  or  held  in  trust  so  as  to  be 
beyond  the  reach  of  an  execution  at  law.  All. the  trans- 
actions charged  are  but  {)arts  of  a  series  of  acts,  all  tend- 
ing to  the  defeat  of  the  plaintiff's  remedy  at  law,  and  may 
properly  be  united  in  the  same  bill.  Cuyler  v.  Morekind,  6 
Paige  273. 

The  last  two  points  were  considered  and  decided  in  this 
court  at  the  last  term,  in  the  case  of  Way  v.  Bragaw,  ante 
p.  213. 

4.  The  fourth  cause  of  demurrer  is,  that  it  does  not  appear 
that  the  complainants  have  exhausted  the  partnership  effects, 
before  resorting  to  the  separate  property  of  Daly,  or  that 
the  firm  of  Daly  &  Burnet  is  insolvent. 

It  is  a  familiar  principle  that  a  judgment  creditor  must 
exhaust  his  remedy  at  law,  before  coming  into  equity.  It  is 
an  equally  familiar  doctrine  of  equity,  that  as  between  the 
partners  themselves,  the  partnership  property  must  be  ap- 
plied to  the  ])ayment  of  partnership  debts,  before  resorting 
to  the  individual  property  of  the  partners.  Yet  a  joint 
execution  upon  a  judgment  for  a  partnership  debt  may  be 
executed  not  only  against  the  partnership  property,  but 
against  the  sejjarate  estate  of  each  partner,  for  each  is  an- 
swerable for  the  whole  and  not  merely  for  his  proportionate 
part  of  the  debt.  Collyer  on  Partnership  {bth  Am.  ed.)  818, 
and  note;  Herrics  v.  Jamieson,  5  T.  R.  556  ;  Abbot  v.  Smith, 
2  W.  BL  947. 

The  complainants,  therefore,  have  a  legal  right,  under  their 
judgment  and  execution  at  law,  to  levy  upon  the  separate 
property  of  Daly,  and   having  such  legal   right,  they  are  en- 


MAY  TERM,  1863.  317 


Randolph  et  al.  v.  Daly  et  al. 


titled  to  the  aid  of  this  court  to  protect  and  enforce  it.  It  is 
true,  that  as  between  themselves,  Daly  has  a  claim  in  equity 
against  his  co-partner  for  contribution,  but  this  cannot  impair 
the  rights,  legal  or  equitable,  of  the  creditor  against  the 
propert)'  of  the  individual  partners,  for  each  party  is  clearly 
liable  for  the  whole  amount  of  the  indebtedness  of  the 
firm. 

It  is  certainly  not  necessary  to  aver  that  the  firm  is  insol- 
vent, in  order  to  entitle  the  complainants  to  relief.  The 
partnership  property  may  be  amply  sufficient  to  satisfy  all 
the  debts  of  the  firm,  yet  it  may  be  so  covered  up,  or  placed 
beyond  the  reach  of  process,  as  not  to  be  amenable  to  exe- 
cution at  law,  and  to  render  the  interference  of  equity  essen- 
tial to  the  ends  of  justice.  All  that  can  be  required  is,  that 
it  should  appear  by  the  bill  that  the  complainant  has  ex- 
liausted  his  remedy  at  law,  and  that  the  aid  of  this  court  is 
necessary  to  enable  him  to  obtain  satisfaction  of  his  judg- 
ment. This  does  sufficiently  appear  by  the  bill  in  this  cause. 
The  complainants  allege,  that  a  writ  of  fieri  facias  de 
bovis  et  terris  issued  upon  the  judgment,  directed  and  deliv- 
ered to  the  sheriff  of  the  county  of  Hudson,  in  which  the 
defendants  resided  and  transacted  their  mercantile  business, 
and  that  the  sheriff  made  return  to  the  said  writ,  that  he 
could  not  find  any  goods  or  chattels  of  the  defendants  in  the 
said  execution  in  his  county,  but  had  levied  upon  certain 
lands  therein  described,  and  ai)praised  the  interest  of  W.  D. 
A.  Daly  therein  at  one  dollar,  and  returned  the  said  writ  of 
execution  wholly  unsatisfied.  The  land  thus  levied  upon, 
and  the  interest  of  William  D.  A.  Daly  in  which  was  ap- 
praised at  one  dollar,  is  the  same  land  which  the  bill  alleges 
to  have  been  fraudulently  conveyed  by  Daly,  to  which  it 
appears  that  at  the  time  of  the  levy  he  had  no  legal  title, 
and  which  was  not,  therefore,  subject  to  a  valid  levy  under  an 
execution  at  law.  The  formal  levy  was  obviously  made  as  a 
foundation  of  a  j)roceeding  in  equity.  By  the  terms  of  the 
writ,  the  sheriff  was  commanded  to  levy  upon  all  t'le  estate, 
real   and  personal,   belonging    to   the   defendants,  either  as 

Vol.  I.  XT 


318  CASES  IN  CHANCERY. 

In  the  matter  of  Weis. 

partners  or  as  individuals.  His  return  must  be  taken  as  at 
least  prima  facie  evidence  that  the  defendants,  neither  in  theis 
partnership  name  nor  as  individuals,  were  seized  or  possessed 
of  any  estate,  real  or  personal,  which  could  be  seized  or  taken 
by  virtue  of  the  execution.  This  is  sufficient  to  give  tha 
complainants  a  standing  in  this  court.  Certainty  to  a  common 
intent  is  all  that  is  ordinarily  required  in  pleadings  in  equity. 
Story's  Eq.  PL,  §  240,  and  note  3  ;  Cooper's  Eq.  P/.  181. 
Tlie  demurrer  is  overruled. 


^    In  the  matter  of  Morris  Weis. 

1.  A  commission  under  which  a  party  has  been  found  an  habitual 
drunkard,  will  not  be  superseded  upon  a  hearing  without  notice,  nor  upon 
ear  parts  afEdavits,  even  with  the  assent  of  the  guardian. 

2.  The  practice  in  proceedings  to  supersede  a  commission,  in  cases  of 
habitual  drunkenness,  should  be  substantially  the  same  as  in  cases  of 
innacy. 

3.  The  truth  of  the  facts  alleged  in  the  petition  may  be  examined  either 
in  open  court  or  before  a  master.  Proceeding  by  reference  to  a  master 
sidopted  as  the  most  convenient,  safe,  and  expeditious  course. 


Van  Fleet,  for  the  petitioner. 

The  Chancellor.  Under  a  commission  issued  out  of  this 
court  in  the  year  1854,  the  petitioner  was  found  an  habitual 
drunkard.  The  petitioner  now  asks  that  the  coni mission 
and  proceedings  thereon  be  superseded,  on  the  ground  that  he 
is  reformed.  The  petition  is  accompanied  by  the  affidavit  of 
the  guardian  of  the  lunatic,  and  of  a  neighbor  of  the  peti- 
tionet".  The  court  is  asked  to  order  a  supersedeas  of  the  com- 
mission, upon  the  evidence  thus  presented,  without  a  reference 
to  a  master.  It  is  the  first  time,  so  far  as  I  am  aware,  that 
the  question  has  been  presented,  and  it  is  proper  that  the 
practice  should  be  settled. 


MAY  TERM,  1863.  319 

In  the  matter  of  Weis. 

In  cases  of  lunacy,  under  the  English  practice,  tiie  petition 
for  a  supersedeas  is  heard  before  the  Chancellor  in  person, 
without  a  reference.  And  the  commission  will  not  be  super- 
seded without  the  evidence  of  physicians  and  the  attendance 
of  the  lunatic  in  person.  If  the  Chancellor  doubts,  a  traverse 
is  permitted,  or  an  issue  ordered.  Ex  parte  Bumpton,  Mosely 
78  ;  Ex  parte  Earl  Ferrars,  Ibid.  332  ;  1  Collinson  on  Lu- 
nacy, 324-6 ;  2  J  bid.  746  ;  In  re  Dyce  Sombre,  1  Phillips 
436;  In  re  Gordon,  2  Phillips  242. 

In  this  state  the  practice  has  been,  in  the  first  instance,  to 
refer  the  matter  to  a  master  for  examination  and  report. 
In  the  matter  of  Pagers,  1  Ilalst.  Ch.  P.  46  ;  In  the  matter  of 
Price,  4  Ibid.  533. 

Whatever  course  may  be  adopted,  I  am  very  clear  that  a 
commission  ought  not  to  be  superseded  upon  an  ex  parte 
hearing  without  notice,  and  upon  the  evidence  of  affidavits 
merely,  even  with  the  assent  of  the  guardian. 

In  re  Dyce  Sombre,  1  Phillips  437,  Lord  Chancellor  Lynd- 
hurst  said  :  ''  The  party  is  not  found  lunatic  upon  affidavits  ; 
the  inquiry  takes  place  under  the  commission ;  witnesses  are 
examined  viva  voce,  the  party  himself  appearing  and  being 
examined  by  the  jury.  It  would  be  extraordinary,  if  under 
such  circumstances,  the  commission  could  be  superseded  upon 
the  evidence  of  affidavits  merely." 

The  statute  indicates,  and  the  reason  of  the  thing  requires, 
that  the  practice,  in  cases  of  habitual  drunkenness,  should  be 
substantially  the  same  as  in  cases  of  lunacy.  In  ordinary 
cases,  there  would  seem  to  bo  less  necessity  in  cases  of  habitual 
drunkenness,  growing  out  of  the  very  nature  of  the  investiga- 
tion, for  the  attendance  of  the  petitioner  or  for  the  evidence 
of  physicians.  But  even  if  these  should  be  dispensed  with, 
there  is  the  greater  necessity  that  the  investigation  siioukl 
be  conducted  with  care,  in  conformity  with  tlie  ordinary 
practice  of  the  court,  and  to  guard,  as  far  as  practicable, 
against  surprise  or  collusion.  To  require  these  investigations 
to  be  conducted  before  the  Chancellor,  wouUl,  in  most  cases, 
be  productive  of  much  inconvenience  and  expense.     To  per- 


320  CASES  IN  CHANCERY. 

In  the  matter  of  Weis, 

rait  the  commission  and  the  proceedings  thereon  to  be  super- 
seded upon  ex  parte  affidavits  without  investigation,  would 
be  an  unwarranted  and  dangerous  departure  from  the  settled 
practice  of  the  court  in  similar  cases.  To  adopt  the  practice 
of  this  court  in  cases  of  lunacy,  and  to  refer  the  matter  to  a 
master,  will  be  found  to  be  the  most  convenient,  safe,  and 
expeditious  course.  See  flatter  of  Hoag,  7  Paige  312.  The 
master  will  have  facilities  for  conducting  the  investigation 
with  more  safety  and  with  less  expense  to  parties,  than  could 
ordinarily  be  expected  in  an  investigation  before  the  court. 
He  may,  if  it  should  appear  necessary  or  expedient,  require 
the  evidence  of  physicians,  or  the  personal  attendance  of  the 
petitioner.  The  guardian,  as  well  as  the  party  at  whose 
instance  the  commission  was  sued  out,  or  other  person  in- 
terested, should  have  an  opportunity  of  appearing  before  the 
master,  or  it  should  satisfactorily  appear  that  the  proceeding 
is  had  with  their  consent. 

An  order  of  reference  will  be  made  accordingly. 


O^SES 


ADJUDGED  IN 


THE  COURT  OF  CHANCERY 

OF  THE  STATE  OF  NEW  JEESET, 

OCTOBER  TERM,  1863. 


The  Delaware  and  Raritan  Canal  and  Camden 
AND  Amboy  Railroad  and  Transportation  Com- 
panies vs.  The  Camden  .  and  Atlantic  Railroad 
CojMPANY,  The  Raritan  and  Delaware  Bay  Rail- 
road Company,  and  others. 

1.  The  restraining  power  of  a  court  of  equity  is  exercised  for  the  pro- 
tection of  rights,  the  existence  of  which  are  clearly  established,  and  so  far 
only  as  may  be  essential  for  the  protection  of  those  rights. 

2.  The  phraseology  of  the  clause  under  which  the  exclusive  privileges 
are  claimed  by  the  complainants,  "  it  shall  not  be  lawful,  &c.,"  {Patnph.  L. 
1832,  p.  80,)  is  the  form  in  which  the  faith  of  the  state  is  usually  pledged, 
and  in  which  contracts  with  corporations,  touching  the  exercise  of  exclu- 
sive franchises  under  legislative  autliority,  are  entered  into.  It  is  none 
the  less  obligatory  that  it  is  not  in  form  a  contract. 

3.  The  legislature  cannot  divest  itself  or  its  successors,  of  its  sovereignty, 
or  extinguish  the  trusts  committed  to  its  custody  for  the  public  welfare. 
It  not  only  may,  but  must  determine  in  what  manner  that  sovereignty 
Bhall  be  exercised,  and  how  those  trusts  shall  b^  executed. 

4.  By  the  grant  of  exclusive  privileges  to  the  joint  companies,  the  legis- 
lature in  no  proper  sense  derogated  from  the  power  of  subsequent  legisla- 
tures to  provide  highways.  The  legislature  have  the  same  control  over 
their  franchises  and  property  as  over  those  of  any  other  citizen,  and  they 
Ynay  be  taken  and  condemned  for  public  use  upon  making  just  compensa- 
tion. 

321 


322  CASES  IN  CHANCERY. 

Dei.  &  Ear.  Canal  and  C.  &  A.  R.  <fe  T.  Co.  v.  Rar.  &  Del.  Bay  E.  Co.  et  al, 

5.  The  clause  in  the  charter  of  incorporation,  rendering  the  consent  of 
ike  companies  iieccssanj  ta.  legalize  the  construction  of  a  competing  road, 
cannot  aflect  the  validity  of  the  law  as  an  act  of  legislation.  Their  assent 
is  no  part  of  legislation.  It  does  not  create  the  law,  but  merely  avoids 
the  constitutional  objection  to  its  validity. 

6.  An  engagement  by  a  contracting  party  that  he  will  not  do  any  act  to 
the  prejudice  of  the  other  contracting  party,  without  his  consent,  is,  in 
effect,  identical  with  an  absolute  and  unqualified  engagement  not  to  do  the 
act.  • 

7.  By  the  act  of  1854  [Pamph.  L.  388,)  supplementary  to  the  act  entitled 
"an  act  relative  to  the  Delaware  and  Raritan  Canal  and  Camden  and 
Amboy  Railroad  and  Transportation  Companies,"  the  true  intent  and 
meaning  of  the  said  last  mentioned  act,  are  declared  to  be  "  fully  and 
effectually  to  protect,  until  the  first  day  of  January,  1809,  the  business  of 
the  said  joint  companies  from  railroad  competition  between  the  cities  of 
New  York  and  Philadelphia." 

Held,  the  grant  of  this  exclusive  privilege  operates  only  to  protect  the 
through  business /rom  city  to  city,  and  not  between  intermediate  places  and 
over  any  and  every  part  of  the  route  between  the  said  cities.  The  fran- 
chise is  exclusive  only  in  regard  to  passengers  and  merchandise  transported 
over  the  entire  route. 

8.  But  even  if  the  exclusive  privilege  also  extend  to  way  business,  still 
a  competing  route  for  local  business  is  not  a  nuisance,  unless  so  near  the 
route  of  the  complainant's  road  as  materially  to  afTect  or  take  away  its 
custom. 

9.  It  is  a. well  settled  rule  of  construction  that  public  grants  are  to  be 
construed  strictly ;  and  in  all  cases  of  grants  of  franchises  by  the  public 
to  a  private  corporation,  the  established  rule  of  construction  is  that  any 
ambiguity  in  the  terms  of  the  contract  must  operate  against  the  corpora- 
tion, in  favor  of  the  public.  The  corporation  take  nothing  that  is  not 
clearly  given  by  the  act. 

10.  Parties  cannot  effect  by  combination  what  neither  can  do  lawfull}'. 
Nor  can  they  effect  by  the  agency  of  others,  what  they  may  not  do  them- 
selves. 

11.  An  injunction  is  the  proper  remedy  to  secure  to  a  party  the  enjoy- 
ment of  a  statute  privilege,  of  which  he  is  in  the  actual  possession,  ar)d 
when  his  legal  title  is  not  put  in  doubt. 

12.  If  a  corporation  goes  beyond  the  powers  witli  which  the  legislature 
has  invested  them,  and  in  a  mistaken  exercise  of  those  pov>rers  interferes 
with  the  rights  or  property  of  others,  equity  is  bound  to  interfere  by  in- 
junction if  the  exigency  of  the  case  require  it.     Whether  those  rights  are 

invaded  by  a  mistaken  or  a  fraudulent  exercise  of  power  is  immaterial. 

13.  The  legislature  cannot  be  presumed  by  a  charter  to  intend  or  con- 
template any  grant  inconsistent  with,  or  that  would  operate  a.'  an  inva- 
eion  of,  a  grant  already  made. 


OCTOBER  TERM,  1863.  323 

Del.  &  Ear.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Ear.  &  Del.  Bay  R.  Co.  et  aL 

14.  The  powers  of  a  court  of  equity  in  regard  to  nuisances,  are  correct- 
ive as  well  as  preventive.  It  may  order  them  to  be  abated,  as  well  as  re- 
strain them  from  being  constructed.  Asa  general  rule,  such  relief  will 
not  be  granted  unless  made  the  subject  of  a  special  prayer. 

15.  To  justify  the  issuing  of  an  injunctiop  to  restrain  the  erection  of  a 
nuisance,  or  to  abate  it  after  it  is  erected,  it  must  appear  not  only  that  the 
complainant's  rights  are  clear,  but  that  the  thing  sought  to  be  enjoined  is 
prejudicial  to  those  rights.  The  fact  of  the  nuisance  must  be  clearly  es- 
tablished. 

16.  A  structure,  though  illegal,  will  not  be  enjoined  as  a  nuisance,  where 
It  occasions  no  injury  to  the  rights  of  the  complainant. 

17.  The  closing  of  a  road  used  as  a  highway  for  travel,  by  injunction, 
can  only  be  justified  by  the  clearest  necessity. 


This  cause  was  oi'Iginally  argued  upon  a  motion  for  a  pre- 
liminary injunction  upon  bill,  answers,  and  affidavits. 

On  the  12th  of  August,  1862,  the  preliminary  injunctioa 
was  refused  upon  grounds  then  succinctly  stated  by  the 
Chancellor.*  No  further  proceedings  were  had  in  the  cause 
until  the  9th  of  June,  1863,  when  leave  was  given  to  the  com- 
plainants to  file  their  replication  to  the  answers  of  the  defend- 
ants to  the  original  bill,  and  also  to  file  a  supplemental  bill. 
On  the  10th  of  June,  1863,  the  complainants  filed  their  sup- 
plemental bill,  by  which,  after  setting  out  the  substance  of  the 
original  bill,  the  answers  of  the  defendants,  the  taking  of  affi- 
davits, and  the  denial  of  the  preliminary  injunction,  they 
proceed  by  way  of  sujiplement,  as  follows  : 

And  your  orators  by  way  of  suj)plement  show  unto  your 
honor,  that  notwithstanding  the  said  declaration  of  the  de- 
fendants in  their  said  several  answers,  your  orators  have  been 
informed  and  believe  it  to  be  true  that,  since  the  filing  of  the 
said  answers  and  since  the  said  hearing  before  your  honor, 
tlie  said  defendants,  the  Raritan  and  Delaware  Bay  Railroad 
Company  have  completed  their  railroad  from  Port  Monmouth 
to  Atsicn  aforesaid,  and,  in  combination  with  the  Cumden 
and  Atlantic  Railroad  Company,  have  completed  the  said 
branct,  railroad  from   Atsion    to  the  Camden    and  Atlantic 

*  2  McCarter  19. 


324  CASES  IN  CHANCERY. 

Del.  &  Ear,  Canal  and  C.  &  A.  E.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al 

Railroad  near  Jackson  aforesaid,  and  by  means  of  the  said 
branch  have  connected  the  said  railroads  so  as  to  form  a  con- 
venient and  continuous  line  of  railway  from  Camden  to  Port 
Monmouth  ;  and  have  made  arrangements,  by  contract  of 
some  sort,  for  continuing  said  line  by  means  of  steamboats  be- 
tween Port  Monmouth  and  the  city  of  New  York,  and  between 
Camden  and  Philadelphia,  so  as  to  form  a  complete  line  of 
travel  and  transportation  over  the  said  line  of  railroad  between 
the  said  cities  of  New  York  and  Philadelphia;  and,  in  viola- 
tion of  their  pledges,  thus  given  as  aforesaid  to  this  honorable 
court  in  their  said  answers,  have  actually  established  lines  of 
transportation,  both  of  freight  and  passengers,  between  the 
said  cities,  over  and  by  means  of  said  line  of  railway  and  said 
steamboats — in  continuation  thereof-^— and  are  now  actually 
engaged  in  such  transportation,  in  open  and  direct  violation 
of  your  orator's  said  chartered  rights  and  privileges  before  re- 
ferred to. 

And  your  orators  further  show  unto  your  honor,  that  they 
are  informed  and  believe  it  to  be  true,  that  in  carrying  on  the 
said  business  of  transporting  merchandise  between  the  cities 
of  New  York  and  Philadelphia,  the  said  defendants  are  using, 
and  combining  with  other  parties  to  use,  certain  names  of 
designation  for  the  said  line  of  transportation,  one  of  which 
names  is  the  Importers'  and  Traders'  Dispatch  Company, 
under  which  name  they  keep  regular  offices  for  the  reception 
and  delivery  of  freight  by  said  line  at  No.  2  Murray  street, 
in  the  city  of  New  York,  and  at  pier  No.  28  North  river,  in 
said  city,  and  at  Vine  street  wharf,  in  the  city  of  Philadelphia  ; 
from  which  offices  goods  are  regularly  shipped  over  and  by 
means  of  the  said  liTie  of  the  di-fendants  between  the  cities 
of  New  York  and  Philadelphia  ;  and  another  of  which  names 
is  the  Union  Transportation  Conipany,  under  whi(di  name 
they  keep  regular  offices  for  receiving  and  delivering  freight 
at  No.  136  North  wharves,  in  the  city  of  Philaclelj)liia,  and 
at  pier  No.  28  North  river,  in  the  city  of  New  York,  from 
which  offices  goods  are  regularly  shipped  over  and  by  means 
of  the  said  line  of  the  defendants,  between  the  said  cities  of 


OCTOBER  TERM,  1863.  325 

Del.  &  Ear.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

New  York  and  Philadelphia  ;  and  another  of  which  names  is 
the  Philadelphia  and  Eastern  Transportation  Company,  under 
which  name  offices  are  kept  in  said  cities,  and  goods  are 
regularly  transported  between  New  York  and  Philadelphia 
over  and  by  means  of  the  said  line  of  the  defendants.  And 
your  orators  are  informed  and  believe  that  by  this  means, 
and  under  the  aforesaid  names  and  designations,  the  defend- 
ants and  their  confederates  are  carrying  on  a  large  freight- 
ing and  transportation  business  between  the  cities  of  New 
York  and  Philadelphia,  over  and  by  means  of  the  said  railroad 
line  between  Camden  and  Port  !Mon mouth,  and  the  steam- 
boats running  in  regular  connection  therewith  at  either  ex- 
tremity of  said  line,  amounting  to  more  than  one  hundred 
tons  of  transportation  per  day  in  each  direction.  And  your 
orators  are  also  informed,  and  believe  it  to  be  true,  that  the 
said  Raritan  and  Delaware  Bay  Railroad  Company,  in  order 
to  cover  up  and  conceal  the  real  nature  of  the  said  transporta- 
tion business,  have  made  and  entered  into  a  certain  pretended 
contract  with  certain  persons  under  the  name  of  the  said 
the  Philadelphia  and  Eastern  Transportation  Company,  for 
the  transportation  of  freight  for  said  com[)any  between  Cam- 
den and  Port  Monmouth,  on  certain  terms  in  said  agreement 
contained  ;  and  that  the  said  railroad  company  pretends  to  be 
engaged  in  the  said  transportation  business  under  and  by 
virtue  of  the  said  agreement,  and  only  between  the  said 
places  last  named ;  but  if  any  such  pretence  shall  be  made 
by  the  said  railroad  company,  and  if  any  such  contract  shall 
be  shown  to  have  been  made  and  entered  into,  your  orators 
charge  that  such  agreement  was  made  with  full  knowledge 
on  the  part  of  the  said  Raritan  and  Delaware  Bay  Railroad 
Company,  its  officers  and  agents,  that  the  business  to  be 
carried  on  under  such  agreement  was  to  be,  and  was  intended 
and  understood  to  be,  a  through  business  between  the  said 
cities  of  New  York  and  Philadelphia,  or  mainly  such;  and 
was  also  made  in  view  of,  and  in  connection  with  other  ar- 
rangements or  agreements  for  the  employment  of  a  steamboat 
or  boats  to  continue  and  complete  the  said  line  between  Port 


326  CASES  IN  CHANCERY. 

Del.  &  Ear.  Canal  and  C.  &  A.  K.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  aL 

Monmouth  and  New  York,  and  between  Camden  and  Phila- 
delphia; and  your  orators  charge  that  such  steamboat  or 
steamboats  was  or  were  the  property  of  the  officers  and 
managers  of  the  said  railroad  company,  or  some  of  them,  or 
that  they,  or  some  of  them,  had  a  large  and  controlling  interest 
therein.  And  your  orators  also  charge  that  if  any  such 
agreement  or  agreements  was  or  were  made,  it  was  made 
under  and  with  the  express  understanding  that,  if  the  said 
business  should  be  interrupted  or  prevented  by  means  of  legal 
proceedings  instituted  in  the  behalf  of  your  orators,  or  other- 
wise, neither  of  the  parties  to  such  agreement  should  be  liable 
to  the  other  for  any  damages  by  reason  thereof,  and  should 
have  the  privilege  of  abandoning  the  same,  or  some  other  pro- 
vision with  that  or  the  like  effect.  And  your  orators  expressly 
charge  that  any  such  agreement  or  contract  which  the  said 
corporate  defendants  or  either  of  them  may  have  entered  into, 
in  relation  to  the  transportation  of  goods  between  Camden 
and  Port  Monmouth,  was  entered  into  by  them  in  contem- 
plation of  and  with  direct  reference  to  the  employment  of 
steamboats  at  either  end  of  said  line,  to  complete  the  same  as 
a  line  of  transportation  between  the  cities  of  New  York  and 
Philadelphia,  and  in  contemplation,  and  with  the  intent  of 
forming  a  through  line  of  transportation  between  said  cities 
for  the  transportation  of  goods  from  city  to  city,  between  the 
said  cities,  in  direct  contravention  of  the  acknowledged  rights 
and  privileges  of  your  orators. 

And  your  orators  further  show  unto  your  honor,  that  if  the 
said  corporate  defendants  should  pretend  that  the  said  trans- 
portation business  is  carried  on  by  other  persons  than  them- 
selves over  their  line  of  railroad,  your  orators  charge  that  if 
such  be  the  case,  it  is  nevertheless  so  done  by  the  consent 
and  co-operation  of  the  said  corporate  defendants,  and  in 
virtue  of  arrangements  and  agreements  by  them  made  with 
such  other  persons;  and  the  said  corporate  defendants  are  re- 
sponsible therefor,  inasmuch  as  by  their  own  showing,  in  and 
by  the  said  answer  of  the  Raritan  and  Delaware  Ray  Railroad 
Company,  the  said  Raritan  and  Delaware  Bay  Railroad  is  not 


OCTOBER  TERM,  1863.  327 

Del.  &  Ear.  Canal  and  C.  &  A.  E.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al. 

a  public  highway,  and  cannot  be  operated  without  the  con- 
sent, and  only  under  the  direction  of  the  said  Raritan  and 
Delaware  Bay  Railroad  Company  ;  and  your  orators  further 
charge  that  whether  the  said  line  of  transportation  is  carried 
on  directly  by  the  said  corporate  defendants  or  one  of  them, 
or  by  other  persons  under  contract  with  them,  such  other 
persons  are  and  must  be  deemed  as' the  agents  of  the  said  cor- 
porate defendants  or  one  of  them,  in  carrying  on  said  busi- 
ness of  transportation  ;  and  your  orators  charge  that  the  said 
corporate  defendants,  and  also  the  said  other  persons  who  are 
aiding  and  assisting  in  carrying  on  the  said  business,  are  liable 
and  chargeable  therefor  in  the  same  manner  and  to  the  same 
extent  as  if  the  said  other  persons  were  the  agents  of  the  said 
corporate  defendants  therein,  whether  they  are  acting  under  a 
pretended  contract  with  the  said  corporate  defendants  for  the 
use  of  their  railroads,  or  not.  And  your  orators  allege  that 
any  such  contractors,  if  any  such  there  be,  became  such  with 
full  knowledge  of  your  orators'  rights  and  privileges,  and  of 
the  pendency  of  this  suit,  and  of  the  allegations  of  the  respec- 
tive parties  therein  ;  and  are  bound  by  all  the  equities  which 
affect  the  defendants  or  any  of  them. 

And  your  orators  further  show  and  charge,  that  one  or 
more  steamboats  regularly  ply  between  New  York  and  Port 
Monmouth,  in  connection  with  the  defendants'  trains  of  cars 
running  between  Port  Monmouth  and  Camden,  and  also  one 
other  steamboat  or  boats  ply  as  ferry  boats  between  Camden 
and  Philadelphia,  in  connection  with  the  same  train  of  cars, 
so  as  to  form  regular  lines  of  transportation  for  freight  and 
passengers  in  both  directions,  and  daily  carrying  freight  and 
passengers  through  from  New  York  to  Philadelphia  and  from 
Philadelphia  to  New  York  ;  and  your  orators  charge  that 
the  said  steamboats  thus  ply  in  connection  with  said  trains 
of  cars  by  the  procurement  of  the  corporate  defendants  or  one 
of  them  ;  but  whether  they  do  or  not  so  ply  by  such  procure- 
ment, the  said  corporate  defendants  are  aiding  and  con- 
tributing, by  such  use  of  their  line  of  railroad  between  Port 
Monmouth   and  Camden  in  connection  with   said  boats,  in 


328  CASES  IN  CHANCERY. 

Del.  &  Kar.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

establishing  and  carrying  on  a  through  line  of  transportation 
for  freight  and  passengers  between  the  said  cities  of  New 
York  and  Philadelphia  ;  and  are  thus  violating  the  rights 
and  privileges  of  your  orators,  and  the  pledges  of  the  said  de- 
fendants. 

And  your  orators  further  show  and  charge  that  the  said 
corporate  defendants,  iu  connection  with  their  said  confede- 
rates, are  also  engaged  in  the  way-business  by  means  of  said 
line ;  whereby  they  largely  compete  with  the  railroad  busi- 
ness of  your  orators,  in  violation  of  your  orators'  said  rights 
and  privileges,  especially  in  the  transportation  by  the  said 
defendants  of  freight  and  passengers  between  Camden  and 
New  York,  and  between  Philadelphia  and  Port  Monmouth, 
and  also  between  Philadelphia  and  Long  Branch,  on  and 
over  the  said  line  of  transportation  so  established  by  them  as 
aforesaid. 

And  your  orators  further  show  and  charge  that,  in  carry- 
ing on  their  said  through  business,  the  said  defendants  and 
their  confederates  give  carriers'  tickets  for  freight  through 
from  city  to  city,  between  the  said  cities  of  New  York  and 
Philadelphia;  but  in  regard  to  through  passengers,  they  use 
various  devices  to  avoid  the  appearance  of  ticketing  a  pas- 
senger through  from  city  to  city,  such  as  requiring  such 
passenger  to  pay  a  separate  fare  on  the  steamboat  between 
Port  Monmouth  and  New  York,  and  the  like  ;  nevertheless, 
they  do  issue  tickets  for  fare  through  between  Camden  and 
New  York,  and  between  Philadelphia  and  Port  Monmouth  ; 
but  notwithstanding  these  and  such  like  devices,  it  is  a  well 
understood  thing  with  the  through  passengers,  that  an  ar- 
rangement exists  by  which  they  can  go  through  by  the  entire 
line  from  one  city  to  the  other,  without  interruption  or  deten- 
tion, as  through  passengers.  And  your  orators  cliarge  that 
such  arrangements  are  mere  subterfuges  to  avoid,  as  far  as 
possible,  the  appearance  of  open  violation  of  your  orators' 
rights  and  privileges  before  referred  to,  at  the  same  time 
that  the  said  defendants  are,  in  law  and  in  fact,  guilty  of  such 
violation. 


OCTOBER  TERM,  1863.  329 

Del.  &  Rar.  Canal  and  C.  &  A.  E.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co,  et  al. 

And  your  orators  state  and  show  to  your  honor,  that  the 
said  defendants,  by  thus  establishing  and  carrying  on  the 
said  line  of  transportation  on  the  said  railroad,  and  the  trans- 
portation of  passengers  and  merchandise  thereby,  whether 
by  themselves  or  through  their  agents  or  contractors,  and 
whether  singly  as  sole  proprietors  of  the  entire  line,  or  jointly 
in  connection  with  other  parties  owning  the  said  steamboats 
at  either  end  thereof,  are  guilty  of  a  direct  and  gross  violation 
of  the  rights  and  privileges  guaranteed  to  your  orators  in 
and  by  the  second  section  of  the  act  passed  the  second  day  of 
March,  in  the  year  eighteen  hundred  and  thirty-two,  set 
forth  in  the  said  original  bill  and  herein  above  referred  to, 
and  in  and  by  the  first  section  of  the  act  approved  on  the 
sixteenth  day  of  March,  in  the  year  eighteen  hundred  and 
fifty-four,  set  forth  in  the  said  original  bill  (but  by  mistake 
described  as  approved  on  the  fourteenth  day  of  March,  in  the 
year  aforesaid)  and  hereinabove  referred  to  j  and  a  violation 
of  the  pledge  given  to  this  honorable  court  in  and  by  their 
said  answers  to  the  said  original  bill. 

And  your  orators  well  hoped  that  the  said  defendants,  after 
the  early  and  prompt  notice  given  to  them  of  the  intention 
of  your  orators  to  vindicate  their  said  rights  by  the  filing  of 
the  said  original  bill  before  the  completion  of  their  line  of 
railroad  by  way  of  Jackson  and  Atsion,  notwithstanding 
their  denial  of  the  rights  of  your  orators  to  the  full  extent  to 
which  your  orators  claimed  the  same  in  said  bill,  would  at 
least  have  regarded  and  respected  the  rights  claimed  by  your 
orators,  which  the  said  defendants,  in  and  by  their  said  several 
answers,  admitted  and  acknowledged  had  been  guaranteed  to 
your  orators  on  the  part  of  the  state  of  New  Jersey,  and 
which,  in  and  by  their  said  answers,  they  declared  their  in- 
tention to  observe  and  respect;  and  your  orators  also  well 
hoped  that  the  defendants,  on  further  advisement,  would  have 
respected  and  observed  all  the  said  rights  and  privileges 
claimed  by  your  orators  under  and  by  virtue  of  the  said  acta 
of  the  legislature;  especially  inasmuch  as  (which  your  orators 
charge  the  fact  to  be)  the  said  defendants,  in  the  month  of 


330  CASES  IN   CHANCERY. 

DeL  &  Ear.  Canal  and  C.  &  A.  K.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al. 

January  or  February  last,  appeared  by  t'neir  counsel  before 
a  committee  of  the  House  of  Representatives  of  the  United 
States,  and  applied  for  an  act  of  the  Congress  of  the  United 
States  that  should  create  tlie  said  railroad  line  of  the  defend- 
ants from  Port  Monmouth  to  Camden,  including  the  ferry- 
between  Camden  and  Philadelphia,  and  the  steamboat  route 
between  Port  Monmouth  and  New  York,  a  post*  road  and 
public  highway  of  the  United  States,  on  the  express  ground 
alleged  by  the  said  counsel,  that  the  said  route  could  not, 
under  the  laws  of  New  Jersey,  be  used  for  through  travel  or 
transportation ;  and  that  any  attempt  so  to  use  the  same 
would  be  enjoined  by  the  courts  of  New  Jersey  ;  and  they 
desired  the  said  act  of  congress  to  enable  them  to  disregard 
the  legislation  of  New  Jersey  in  this  behalf. 

But  now  so  it  is,  may  it  please  your  honor,  that  the  said 
corporate  defendants,  combining  and  confederating  with  the 
said  individual  defendants,  who  are  aiding  and  abetting  them 
in  the  premises,  and  with  divers  other  persons  at  present  un- 
known to  your  orators,  but  whose  names  when  discovered 
your  orators  pray  may  be  inserted  herein  and  they  made,  par- 
ties hereto,  with  proper  and  apt  words  to  charge  them,  and  con- 
triving how  to  injure  and  aggrieve  your  orators  in  the  pre- 
mises, not  only  refuse  so  to  observe  your  orators'  just  rights 
and  privileges  guaranteed  to  them  as  aforesaid,  by  contract 
with  the  state  of  New  Jersey,  but,  having  failed  to  obtain 
an  act  of  congress  as  applied  for  by  them,  or  any  act  of 
congress  on  the  subject,  (which,  if  obtained,  your  orators 
allege  would  have  been  ineffectual  for  the  j)urposes  of  the 
defendants)  they,  the  said  defendants,  and  their  confederates 
proceeded  to  engage  in  and  carry  on  said  business  of  trans- 
portation in  defiance  of  your  orators'  said  rights  and  privi-. 
leges,  and  at  the  risk  of  being  enjoined  and  restrained  by 
this  honorable  court;  but  in  the  use  and  employment  of 
various  devices  and  contrivances  before  mentioned,  and 
making  various  pretences,  calculated  and  intended  to  cover 
up  and  conceal  the  real  character  of  their  said  acts,  and  to 
make  it  appear  that  they  were  not  infringing  your  orators' 


OCTOBER  TERM,  1863.  .  331 

Del.  &  Ear.  Canal  and  C.  &  A.  E.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al. 

Baid  rights  and  privileges  ;  but  either  were  engaged  only  iu 
the  alleged  legitimate  business  of  transporting  freight  and 
passengers  from  one  interior  point  of  New  Jersey  to  another 
interior  point  thereof;  or  were  permitting  other  and  outside 
parties,  over  whom  they  had  no  control,  namely,  their  said 
unknown  confederates,  to  use  their  road  at  the  alone  risk  and 
on  the  alone  responsibility  of  said  other  and  outside  parties ; 
and  amongst  other  things,  the  said  corporate  defendants 
sometimes  pretend  to  have  entered  into  contract  or  contracts 
with  the  said  other  confederates,  who,  they  pretend,  have 
thereby  contracted  for  the  use  of  their  said  line  of  railroad 
from  Camden  to  Port  Monmouth,  and  for  carrying  on  the 
said  transportation  business  independently  of  said  defendants; 
but  your  orators  charge  that  if  any  such  contract  or  contracts 
is,  or  are  made,  the  same  do  not  and  cannot  exonerate  the 
defendants  from  their  duty  to  regard  the  laws  of  New  Jersey, 
and  the  rights  of  your  orators  under  the  same,  and  under 
the  said  guarantees  before  referred  to;  nor  from  so  managing 
and  controlling  their  works  as  to  prevent  tiie  violation  of 
said  rights.  At  other  times  tiie  defendants  pretend  that 
they  are  not,  nor  is  either  of  them,  the  proprietor  or  pro- 
prietors of  the  steamboat  or  boats  by  which  their  said  line 
is  connected  with,  and  completed  to  New  York  City,  nor 
of  tlie  ferry  boat  or  boats  by  which  their  said  line  is  con- 
nected with,  and  completed  to  Philadelphia.  But  your  orators 
charge  that  if  the  defendants,  or  some  of  them,  are  not  the 
owners  of  said  boats,  they  have,  nevertheless,  either  by  them- 
selves, or  by  their  agents  or  contractors  and  confederates, 
in  some  manner  secured  the  use  and  employment  of  said 
steamboats  so  as  to  complete  the  said  line  from  Philadelphia 
to  New  York.  At  other  times  the  defendants  })retend  that 
they  only  transport  passengers  and  freight  to  and  from  way 
stations,  tbgt  is,  intermediate  stations  in  New  Jersey,  in  con- 
nection with  the  cities  of  New  York  and  Philadelphia  re- 
spectively ;  and  do  not  transport  either  passengers  or  freight 
through  ihe  whole  route  from  city  to  city,  and  that  they  are 
not  responsible  for  the   manner  in  which  the  said  passengers 


332  CASES  IN  CHANCERY. 

Del.  &  Rar.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

dispose  of  themselves,  or  in  which. the  said  freight  is  disposed 
of,  beyond  such  intermediate  points.  But  your  orators 
charge  that,  even  if  such  pretence  were  true,  such  way  busi- 
ness, or  much  of  it,  competes  with  the  business  of  your  orators 
on  their  said  railroads,  contrary  to  the  said  acts  of  eigiiteen 
hundred  and  thirty-two,  and  eighteen  hundred  and  fifty-four, 
before  referred  to;  but  in  truth  and  in  fact,  the  said  defend- 
ants, by  themselves,  their  agents,  or  contractors,  do  actually 
transport  freight  and  passengers  through  the  whole  of  said 
line  or  route  from  Philadelphia  to  New  York,  and  vice  versa 
from  New  York  to  Philadelphia;  or,  if  in  point  of  form  they 
do  not  themselves  transport  such  freight  and  passengers 
throughout  the  whole  of  said  line,  they  do  so  in  substance 
and  effect;  and  they  do  in  form,  as  well  as  in  substance  and 
'effect,  knowingly  participate  in  carrying  on  and  keeping 
in  operation  the  said  through  line  as  a  through  line  of  trans- 
portation, and  although  it  were  true  that  other  parties  sus- 
tained and  kept  in  operation  portions  of  said  line,  yet  if  the 
defendants  sustained  and  kept  up  only  a  single  portion  thereof 
(the  same  being  a  known  through  line),  the  defendants  are 
responsible  for  the  part  they  take  in  the  same,  as  for  aiding 
and  contributing  in  the  transportation  of  passengers  and 
freight  directly  from  city  to  city,  by  a  railroad  constructed  for 
that  purpose  by  the  defendants,  in  violation  of  the  acknow- 
ledged rights  and  {)rivileges  of  your  orators. 

And  your  orators  further  charge  that,  if  the  said  business 
of  transporting  passengers  and  freight  through  from  city  to 
city  between  the  said  cities  of  New  York  and  Philadelphia, 
is  conducted,  managed,  or  carried  on  by  the  confederates 
of  the  said  defendants,  or  of  any  of  them,  by  virtue  of  any 
contract  or  contracts  made  by  and  between  them  and  the 
said  defendants,  nevertheless  the  said  defendants,  at  the  time 
of  the  making  of  such  contract  or  contracts,  well  knew  that 
the  said  confederates  obtaining  such  contract  or  contracts,  at 
the  time  of  the  making  thereof,  contemplated  and  intended 
to  establisii  and  carry  on  such  through  lines  of  transportation 
from  city  to  city,  and  by  entering  into  such  contract  or  con- 


OCTOBER  TERM,  1863.  333 

Del.  &  Rar.  Canal  and  C,  &  A.  R  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

tracts  with  the  said  confederates,  the  defendants  so  contract- 
ing, knowingly  and  wilfully  co-operated  with  them  in  the 
establishment  of  such  line  or  lines  ;  and  your  orators  charge, 
that  the  said  confederates,  at  the  same  time,  also  well  knew 
of  the  rights  of  your  orators,  and  of  the  pending  of  this 
suit,  and  took  no  rights  or  interests,  by  virtue  of  such  con- 
tract or  contracts,  which  placed  them  in  any  better  position, 
or  on  any  better  footing  than  the  said  defendants  occupied  in 
relation  thereto  ;  and  that  the  said  contracts  were  intended 
merely  as  a  cover  to  enable  the  said  defendants  to  carry  on 
the  said  transportation  business  ostensibly  in  the  names  of 
other  persons,  and  as  a  means  of  deceiving  and  defrauding 
your  orators  in  the  premises.  And  your  orators  charge  that 
all  the  said  contracts  and  contrivances  (if  any  such  were 
made)  were  a  fraud  upon  your  orators,  and  intended  for  the 
purpose  of  enabling  the  defendants  to  evade  your  orators' 
said  rights  and  privileges,  and  their  own  obh"gations  in  that 
behalf. 

The  prayer  of  the  bill  is  that  the  said  defendants  may  dis- 
cover and  set  forth  whether  their  said  line  of  railroad  com- 
munication has  not  been  completed  from  Camden  to  Port 
Monmouth  by  way  of  Jackson  and  Atsion,  as  specified  in  the 
former  pleadings  in  this  cause;  and  whether  said  line  has  not 
been  furnished  with  locomotive  engines  and  cars  for  the  trans- 
portation of  passengers  and  freight ;  and  whether  the  same 
has  not  been  put  in  operation,  and  is  not  now  in  operation  in 
the  transportation  of  passengers  and  merchandise  thereon  ; 
and  whether  a  through  line  of  transportation,  both  of  passen- 
gers and  freight,  or  one  or  the  other,  and  which  of  them, 
from  city  to  city,  between  the  cities  of  New  York  and  Phila- 
delphia, has  not  been  established  over  said  railroad,  and 
whether  such  line  is  not  now  in  operation,  and  actually  used 
in  transfwrting  passengers  and  freight  through  from  city  to 
city  as  aforesaid  ;  and  whether  the  said  line  is  not  conducted 
and  carried  on  by  the  defendants,  or  some  or  one  and  which 
of  them  ;  and  if  not,  then  by  whom  else,  and  under  or  in  pur- 
suance of  what  arrangement,   understanding,  or  agreemenfa 

Vol.  r.  x 


334  CASES  IN  CHANCERY. 

Del.  &  Ear.  Canal  and  C.  &  A.  K.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al. 

with  the  defendants,  or  some  or  one  and  which  of  them,  set- 
ting forth  the  contents  in  full  of  any  such  agreement,  if  any 
there  may  be;  or,  if  there  be  no  through  line  between  the 
said  cities  establislied  and  carried  on  by  any  one  party  or  as- 
sociation of  persons,  then  that  they  may  discover  and  set 
forth  the  different  parties  or  persons  who  maintain  and  carry 
on  the  several  parts  and  portions  of  said  line,  and  under  what 
understanding  or  agreement  the  same  is  carried  on  in  sepa- 
rate parts  or  portions  by  the  several  parties  interested  or  con- 
cerned therein  ;  and  more  particularly  what  interest  the  de- 
fendants, or  any  of  them,  may  have  in  the  said  several  por- 
tions of  said  line,  or  any  or  either  of  the  said  portions, 
whether  as  proprietors,  lessors,  lessees,  contractors,  con- 
tractees,  or  otherwise ;  and  if  there  be  no  professed  through 
line  of  transportation  of  passengers  or  freight  from  city  to 
city  as  aforesaid,  then  to  discover  whether  there  is  not,  never- 
theless, an  actual  line  by  which  passengers  and  freight,  or  the 
one  or  the  other,  are  in  fact  trans[)orted  from  city  to  city  as 
aforesaid,  by  the  transfer  of  such  passengers  or  freight  from 
one  carrier  to  another,  or  in  some  other  and  wdiat  manner; 
and  that  the  defendants  may  discover  what  number  of  pas- 
sengers, and  what  amount  of  freight  have  res[)ectively  been 
transported  on  the  said  route  from  city  to  city  as  aforesaid  ; 
and  about  what  number  of  passengers  and  what  amount  of 
freight  are  now  being  transported  daily  or  weekly  from  city 
to  city,  at  this  present  time  ;  and  under  what  designations  or 
names  the  said  transportation  is  being  carried  on  ;  and  what 
rates  of  fare  and  freight  are  charged  for  such  transportation  ; 
and  that  the  said  defendants  may  set  forth  and  discover  all 
and  every  agreement  and  agreements  by  them,  or  any  of 
them,  made  with  any  other  person  ov  pei'sons,  for  the  trans- 
portation of  passengers  or  freight  across  said  line  of  railroad, 
giving  the  names  of  the  persons  witii  whom  such  agreements 
may  respectively  have  been  made,  and  setting  forth  the  said 
agreements  in  full. 

And  that  the  said  defendants  and  each  and  every  of  them, 
and     their    confederates,    contractors,    agents,    and    servants, 


OCTOBER  TERM,  1863.  335 

Del.  &  Rar.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del  Bay  R.  Co.  et  al. 

may  be  decreed  to  desist  and  refrain  from  further  transport- 
ing, or  aiding  or  assisting  in  the  transportation  of  passengers 
or  merchandise  from  city  to  city,  between  the  cities  of  New 
York  and  Philadelphia  ;  and  that  the  said  defendants,  the 
Raritan  and  DeUiware  Bay  Railroad  Company  and  the  Cam- 
den and  Atlantic  Railroad  Company,  and  their  confederates, 
contractors,  and  agents,  may  be  severally  decreed  to  desist 
and  refrain  from  fiu'ther  permitting  or  allowing  their  re- 
spective railroads,  engines,  cars,  or  machinery,  to  be  used  for 
the  purpose  of  carrying  on  any  such  transportation  of  pas- 
sengers or  merchandise  from  ci(y  to  city,  between  the  said 
cities,  or  for  the  purpose  of  aiding  or  assisting  in  the  tran's- 
portation  of  passengers  or  merchandise  between  tlie  said 
cities  from  city  to  city  ;  and  that  any  agreements  or  arrange- 
ments made  by  them,  or  either  of  them,  for  that  purpose, 
may  be  declared  null  and  void  ;  and  that  the  said  corpora- 
tion defendants,  their  confederates,  contractors,  and  agents, 
may  be  severally  decreed  to  desist  and  refrain  from  forward- 
ing, and  from  aiding  or  assisting  to  forward,  and  from  per- 
mitting or  alUnving  to  be  forwarded,  by  way  of  the  said 
railroad  or  any  part  thereof,  from  any  point  or  place  in  this 
state  to  any  other  point  or  place  in  this  state,  any  passengers 
or  merchandise  which  are  or  may  be  in  the  course  of  trans- 
portation from  city  to  city,  between  the  said  cities  of  New 
York  and  Philadelphia  ;  and  that  all  the  said  other  defend- 
ants may  be  severally  decreed  to  desist  and  refrain  from 
aiding  and  abetting  the  said  corporate  defendants,  or  either 
of  them,  in  any  such  forwarding  of  freight  or  merchandise; 
and  that  by  the  decree  of  this  honorable  court,  the  defend- 
ants in:)  each  of  them,  together  with  their  confederates, 
contractors,  and  agents,  may  be  enjoined,  restrained,  and 
prohibited  from  doing  any  act  or  acts  for,  or  towards,  or  in 
aid  of  the  transportation  of  passengers  or  merchandise  be- 
tween New  York  and  Philadelphia,  by  way  of  said  railroad, 
either  by  using  or  permitting  to  be  used  the  ditlerent  sec- 
tions thereof  for  that  purpose,  in  connection  with  each  other, 
or  by  using  the  said   railroad   or  any  part  thereof  in  connec- 


336  Cases  in  chancery. 

Del.  &  Ear.  Canal  and  C.  &  A.  K.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al. 

tion  with  any  steamboat  or  steamboats  ;  and  that  the  said  cor- 
poration defendants  may  be  restrained  and  prohibited  from 
permitting  their  respective  roads,  or  any  section  or  sections 
thereof,  to  be  used  for  any  such  last  mentioned  purpose;  and 
that  said  defendants,  x'espectively,  and  their  confederates,  re- 
spectively, may  be  enjoined  and  restrained  from  performing, 
aiding,  or  contributing  to  the  transportation  of  passengers  or 
freight  from  city  to  city  aforesaid,  across  the  said  raih'oad, 
and  upon  steamboats  running  in  connection  therewith,  by  any 
other  device  or  contrivance  whatsoever  ;  and  tliat  the  said  de- 
fendants may  be  severally  enjoined  and  restrained  from  using 
the  said  railroad  between  Camden  and  Port  Monmouth  in 
any  other  manner,  so  as  to  compete  in  business  with  the  rail- 
roads of  your  orators ;  and  that  the  said  corporation  defend- 
ants may  pay  to  your  orators  all  such  damages  as  your  orators 
may  have  sustained  by  their  unlawful  acts  in  the  premises, 
and  that  an  account  may  be  taken  to  ascertain  the  amount  of 
said  damages  ;  and  that  your  orators  may  have  such  other  or 
further  relief  as  to  your  honor  shall  seem  meet,  and  shall  be 
agreeable  to  equity  and  good  conscience. 

Affidavits  and  exhibits  were  annexed  to  the  bill  in  support 
of  its  material  charges.  Answers  were  filed  by  all  the  defend- 
ants. Depositions  having  been  taken,  the  cause  is  now  heard 
upon  the  pleadings  and  proofs. 

J.  P.  Stocldon,  for  the  complainants. 

I  shall  assume  as  settled,  the  points  assumed  upon  the 
former  hearing,  and  which  I  do  not  consider  as  open. 

1.  That  there  is  an  existing  and  valid  contract  between  the 
complainants  and  the  state. 

2.  That  the  complainants  have  not,  by  consent,  relinquished 
any  of  the  rights  secured  by  said  contract. 

3.  That  this  court  has  jurisdiction,  and  is  the  proper  tri- 
bunal to  protect  the  complainants  in  the  enjoyment  of  their 
franchises. 


OCTOBER  TERM,  1863.  337 

Del.  &  Ear.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al. 

If  the  complainant  are  seeking  their  rights  in  a  proper 
manner  by  the  supplemental  bill,  our  inquiry  will  be  con- 
fined to  three  points. 

1.  The  nature  and  extent  of  complainants'  franchise. 

2.  The  fact  and  the  manner  of  their  disturbance. 

3.  The  nature  and  kind  of  relief  to  which  they  are  enti- 
tled. 

As  preliminary,  I  insist  the  complainants  are  properly  in 
court  by  their  supplemental  bill.  It  states  new  facts,  and 
asks  additional  relief. 

The  great  fact  charged  in  the  original  bill  is,  that  the 
Raritan  and  Delaware  Bay  Railroad  was  being  constructed 
to  be  used  in  violation  of  the  chartered  rights  of  the  com- 
plainants, as  a  means  of  transportation. 

The  answer  denied  any  intention  to  violate  our  rights. 
The  defendants  went  further,  and  alleged  that  the  road  was 
not  a  public  highway,  and  could  not  be  used  by  other  par- 
ties, without  their  consent,  to  violate  our  rights. 

By  our  supplemental  bill  and  proofs,  we  establish  the  fact 
that  freight  and  merchandise  have  been  carried  over  the 
roads  between  the  cities.  We  ask,  therefore,  not  only  the 
specific  relief  prayed  for  in  the  supplemental  bill,  but  such 
general  relief  as  we  may  be  entitled  to. 

A  supplemental  bill  is  the  proper  mode  of  bringing  before 
the  court  the  whole  ground  of  complaint,  and  to  obtain  the 
assistance  of  the  court,  either  to  aid  the  complainants  in  ob- 
taining the  relief  sought  by  the  original  bill,  or  new  and 
additional  relief.  Sfon/s  Eq.  PL,  §  336  ;  Candler  v.  Pettit, 
1  Paige  168  ;  2  Madd.  405  ;  Edgar  v.  Clevenger,  2  Green's 
Ch.  R.  259,  464 ;  S.  C.  1  Ibid.  261  ;  Jones  v.  Jones,  3  Atk 
217. 

I.  The  nature  and  extent  of  the  complainants'  franchise. 

The  view  of  the  Chancellor  upon  this  point  will  be  fmnd 
in  the  tenth  point  of  his  opinion  delivered  on  the  former  ar- 
gument:    2  McCarter  21. 

But  I  insist  that  the  essential  element  of  a  competing 
Lnisiuess   is  a   railway  used    for    the   trans[)ortation   of   mer- 


338  CASES  IN  CHANCERY 


Bel.  &  Ear.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  E.  Co.  et  al. 

chandise  across  the  state.  It  is  a  railroad  or  roads,  and  not 
tiie  line  of  communication.  It  is  a  railroad  within  and 
across  the  state  of  New  Jersey.  It  is  a  road  or  roads  used  for 
the  purpose  of  transportation  between  the  cities,  not  extend- 
ing from  city  to  city,  but  any  portion  of  the  distance  between 
them. 

The  only  condition  to  be  fulfilled  to  bring  a  road  within 
the  })rohibitiou  is,  that  it  should  be  used  in  the  through  trans- 
portation, no  matter  how  it  may  be  so  employed.  Boston 
and  Lowell  R.  Co.  v.  Salem,  and  Loivell  R.  Co.,  2  Gray  4 ; 
J^onlcJiartrain  JR.  Co.  v.  New  Orleans  and  Carrollion  R.  Co., 
n  Louisiana  R.  254;  Act  of  4th  Feb.,  1830,  §  2,  11,  16,  23. 

All  that  the  statute  could  prohibit  or  protect  was  the  rail- 
way across  the  state.  They  mean  from  water  to  water ; 
that  is  all  they  could  mean.  Tlie  railway  is  declared  a  pub- 
lic highway.  The  grant  is  of  a  road  across  the  state.  The 
])rohibition  is  of  roads  to  compete  with  that.  Charter  of 
Canal  Co.  [Laivs  o/  1830,  p.  73,  83,)  §  2,  1 1 ;  Jc^  of  Feb.  3c?, 
1831,  §  2;  Act  of  '2d  March,  1832,  §  2;  Act  of  1830,  §  24; 
Act  of  1831,  §  7  ;  Richmoyid  R.  Co.  v.  The  Louisa  R.  Co.,  13 
How.  85,  dissenting  opinion  of  Curtis,  J.  ;  Colledge  v.  Harty, 
6  Welsby,  Harlst.  &  G.  205. 

The  object  of  the  legislature  was  to  protect  the  company 
from  railroad  competition.  By  the  act  of  1854,  the  intent  of 
all  previous  acts  and  legislation  of  the  state  is  declared  to  be 
fully  and  effectually  to  protect  the  business  of  the  companies 
from  railroad  com[)etition  between  New  York  and  Pliiladel- 
])hia.     Act  of  1854,  §  4  ;  Act  of  1830,  §  7,  24. 

ir.  The  fact  and  manner  of  the  disturbance  of  the  fran- 
chise. 

1.  The  defendants'  road  has  been  used,  by  their  own  ad- 
mission, to  transport  soldiers,  horses,  and  munitions  of  war. 
The  fact  that  it  was  done  by  order  of  the  secretary  of  war, 
makes  it  no  less  a  violation  of  our  franchise. 

2.  The  affidavits  annexed  to  the  sui)plemental  bill  and 
the  admission  of  the  answer,  show  thut  there  is  in  existence 
a  line  or  lines  of  transportation,  both  for  freight  and  passen- 
gers, between  Philadelphia  and   New  York,  by  means  of  the 


OCTOBER  TERM,  1863.  339 

Del.  &  Ear.  Canal  and  C.  &  A.  E.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al. 

tlefendants'  road.  And  that  the  road  is  used  for  the  trans- 
portation of  passengers  and  freight  "between  the  cities  by 
railway "  across  the  state,  in  whatever  sense  those  words 
may  be  used. 

3.  They  admit  that  the  Philadelphia  and  Eastern  Trans- 
portation Company  have  an  office  in  the  city,  and  carry  on 
the  business  of  transportation  between  the  cities,  and  that 
they  are  responsible  for  the  acts  of  which  we  complain. 

4.  They  admit  that  they  are  directly  disturbing  our  fran- 
chise by  transporting  from  Camden  and  from  Philadelphia 
to  Port  Monmouth,  and  from  Camden  to  New  York  ;  and 
this  line  carries  the  passengers  and  freight  over  the  roads 
between  the  cities. 

It  matters  not  by  whose  order  the  wrongful  act  was  done. 
It  is  not  alleged  that  the  government  have  taken  military 
possession  of  the  road ;  if  it  were  so,  it  would  be  no  excuse 
for  a  third  party,  nor  relieve  them  from  responsibility  for 
the  violation  of  our  rights.  The  government  has  no  power, 
by  making  it  a  post  or  military  road,  to  aflPect  our  franchise. 
Shreicshury  and  Birm.  R.  Co.  w  The  London  and  N.  W.  B. 
Co.  17  Adol  &  Ellis  {N.  S.),  669,  670. 

The  pleadings  and  evidence  clearly  show  a  direct  viola- 
tion of  our  franchise,  and  that  the  junction  of  the  two  roads 
was  effected  with  that  very  object  in  view. 

But  it  is  said — 

1.  That  it  is  not  a  competing  business. 

2.  That  the  business  is  so  insignificant  as  not  to  entitle  us 
to  the  interferance  of  the  court. 

The  maxim  "de  minimis  non  curat  lex"  never  applies  to  the 
positive  and  wrongful  invasion  of  one's  property.  Every  in- 
jury to  a  legal  right  is  a  wrong.  Seneca  Road  Co.  v.  Au- 
burn R.  Co.,  5  Hill  170,  175  ;  Broom's  Leg.  Max.  152,  155  ; 
PenruddocMs  case,  5  Rep.  101,  b ;  King  v.  The  Rochdale 
Co.,  14  Adol  &  Ellis  [N.  S.),  136;  Washburn  on  Easements, 
219,  229,  569  ;  2  3Iach.  &  Gor.  243;  Webb  v.  The  Portland 
Manufg  Co.,  3  Sumn.  189,  197. 

The  defendants  are  answerable  for  the  illeg-al   use  of  their 


340  CASES  IN  CHANCERY. 

Del.  &  Ear.  Canal  and  C.  &  A.  K.  &  T.  Co.  v,  Rar.  &  Del.  Bay  E.  Co.  et  al. 

road  made  by  others,  because  they  have  themselves  declared 
that  "their  road  was  not  a  public  highway,  and  could  not  be 
used  by  others  without  their  consent.  JRex.  v.  Medley,  6 
Carr.  &  Payne  292 ;  Brice  v.  Dorr,  3  McLean  583 ;  Slory's 
Ex'rs  \.  Holeombe,  4:  McLean  310;  Hogg  v.  Emerson,  11 
Bow.  607. 

If  they  had  leased  both  the  roads,  they  are  liable  for  any 
injury  done  by  their  lessees.  Miliington  v.  Fox,  3  Mylne 
&  a  338,  353. 

They  have  constituted  the  transportation  company  their 
agents  to  carry  on  this  business,  and  are,  therefore,  liable  to 
us.  Story  on  Agency  452  ;  Smith's  3Laster  and  Servant  132, 
154. 

They  cannot  do  indirectly,  or  by  circuitous  contrivance, 
what  they  cannot  do  directly.  York  and  Maryland  Line 
R.  Co.  v.  IVinans,  17  How.  30. 

They  cannot  escape  liability  except  by  an  act  of  the  legis- 
lature. 7  Clark  &  Finnelly,  509 ;  Huzzy  v.  Field,  2  Cromp. 
Mees.  &  Ros.  4-12  ;  Chapman  v.  Hie  Mad  River  and  L.  E.  R. 
Co.,  6  Ohio  State  R.  120;  Robbins  v.  Hardcastle,  2  Durnf. 
&  East  252. 

As  to  the  effect  of  the  lease.  13  Gray  128;  46  Maine 
117;  44  Maine  362;  26  7^717;  27  T?.  370 ;  Redjield  on 
Railways  436. 

If  the  wrongful  acts  of  the  defendants  are  tolerated,  the 
state  as  well  as  the  complainants  are  injured.  We  are  mere 
termors  ;  the  state  has  the  reversion.  We  should  be  answer- 
able to  the  state  for  permitting  destruction  of  the  property. 
We  are  trustees,  bound  to  protect  cestui  que  trusts.  Shaio 
V.  Norfolk  R.  Co.,  5  Gray  170;  3  Young  &  Coll.  216;  Red- 
jield on  Railways  494,  411,  §  179;  1  Stockt.  bOl . 

If  a  railroad  has  been  constructed  and  used,  which  has 
carried  passengers  and  freight  which  would  otherwise  have 
sought  the  complainants-  road,  or  if  they  have  advertised  a 
through  route,  and  a  single  i)assenger  or  ton  of  merchan- 
dise has  been  carried  over  that   route,  they  have  violated  our 


OCTOBEU  TERM,  1863.  341 

Del.  &  Ear.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R,  Co.  et  al. 

frauchi.-e.  4  Cormjn's  Dig.  '' Piscctry,"  B;  2  Bcas.  94,  96; 
lluzzey  V.  Field,  2  Cromp.  Mees.  &  Ros.  442. 

There  is  no  lawful  purpose  to  which  the  roacl  can  be  put. 
Tht'V  have  exceeded  their  powers.  The  road  was  illegally 
and  fraudulently  located.  9  Harris  126.  The  answers  of 
both  parties  avow  that  they  deviated  from  the  route  desig- 
nated by  the  legislature  to  reach  the  city  of  Philadelphia. 
They  are  mere  trespassers,  acting  without  legal  authority  in 
the  construction  of  their  road.  Chamherluine  v.  Chester  R, 
Co.,  1   Welsby,   HarM.  &   G.  876,  877. 

III.  As  to  the  relief  to  which  the  complainants  are  enti- 
tled, we  ask  that  the  nuisance  be  abated.  It  exists  against 
law  and  by  fraud  practised  on  the  court.  The  court  will 
order  it  abated,  or  by  mandatory  injunction  forbid  it  to  be 
continued. 

The  court,  on  the  former  hearing,  refused  to  enjoin  the  con- 
struction of  the  road,  on  the  ground  that  the  answers  of  the 
defendants  expressly  denied  their  intention  to  violate  the 
chartered  rights  of  the  complainants.  The  evidence  shows, 
notwithstanding  that  the  road  has  been  used  in  such  viola- 
tion, and  that  such  was  the  intention  of  the  defendants. 
This  conduct  has  been  a  contempt  of  justice  and  an  aifroat 
to  the  court. 

The  court  will  use  its  power  most  vigorously  for  the 
vindication  of  the  complainant's  rights.  Earl  v.  De  Hart, 
1  Beas.  287  ;    Washburn  on  Easements  578. 

The  court  may  abate  as  well  as  prevent  nuisances,  in  clear 
cases.     Drewry  on  Inj.  176-7,  260  ;  2  Atk.  83. 

At  the  former  hearing  we  were  clearly  entitled  to  an  in- 
junction to  prevent  the  construction  of  the  road,  if  it  was 
intended  to  be  used  to  our  injury  ;  if  we  had  that  right  then, 
we  have  now  the  right  to  abate  it.  The  court  is  bound  to 
see  that  the  defendants  do  not  j)r()fit  by  their  own  wrong. 
Croton  Turnpike  Road  v.  Ryder,  1  Johns.  Ch.  R.  611. 

We  were,  on  filing  the  bill,  entitled  to  j)revent  the  con- 
struction of  the  road  as  the  means  of  protection  against  its 
use.     Atkyns  v.  Kinnier,  4  Exchc(p  776  ;  Dendy  v.  Hender- 


342  CASES  IN  CHANCERY. 

Del.  &  Ear.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al 

son,  11  Kvcheq.  192;  TalUs  v.  Tallis,  1  Ellis  &  BlaoL  391  ; 
Whittemore  v.  Cutter,  1  Gall.  529  ;  Hale  v.  Bainbridge,  5 
^cfo^.  (fc  Ellis,  {N.  S.),  233. 

Williamson,  for  the  Raritau  and  Delaware  Bay  Railroad 
Company. 

No  great  pecuniary  interest  is  invoU'ed  in  the  immediate 
result.     The  contest  is  mainly  for  principle. 

The  bill  claims  not  only  a  right  to  the  through  business, 
but  also  to  the  intermediiite  business  between  the  cities. 

1.  The  defendants  deny  the  grant  of  such  rights  as  are 
claimed  by  the  bill. 

2.  They  insist  that  such  grant,  if  made,  is  unconstitutional. 

3.  The  prohibition  extends  to  the  use  only,  not  to  the  con- 
Btruction  of  the  road. 

4.  The  location  of  the  defendant's  road  was,  by  their 
charter,  referred  to  the  discretion  of  the  directors,  and  cannot 
be  interfered  with. 

5.  The  comjilainants  had  acquiesced  in  the  action  of  the 
defendants,  and  were  too  late  in    their  aj)plication   for  relief. 

The  court  have  already  decided  tiiat  the  i)rohibition  ex- 
tends to  the  use  only,  and  not  to  the  construction  of  the  road. 
As  a  corollary  of  that  proposition,  we  insist — 

1.  That  the  construction  of  those  roads,  and  the  transporta- 
tion of  passengers  over  them,  do  not  necessarily  constitute 
any  violation  of  the  complainant's  rigiits. 

2.  That  the  injunction  ongiit  not  to  be  granted,  merely 
because  the  road  may  be  perverted  to  an  illegal  use. 

3.  That  full  {)rotection  can  be  given  to  the  complainant's 
rights  by  an  injunction  restraining  the  use  of  the  road. 

The  great  object  of  the  original  bill  was  to  restrain  the 
use  only.  The  com[)lainants  now  ask  more.  They  seek  tiie 
utter  destruction  of  the  road.  The  ori>>;inal  bill  was  filed  in 
July,  1862.  The  defendants  commenced  running  their  road 
in  August,  1862.  The  complainants  stop[)ed  proceedings 
until  the  9th    of  June,    1863,  and    now  in   December,  18G3, 


OCTOBER  TERM,  1863.  343 

Del.  &  Ear.  Canal  and  C.  &  A.  E.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al. 

seventeen  months  after  the  filing  of  the  original  bill,  they  seek 
the  destruction  of  the  defendants'  road. 

The  object  of  the  supplemental  bill  was  to  bring  before  the 
court  facts  which  had  occurred  since  the  filing  of  the  original 
bill.  There  is  no  further  proof  as  to  any  fact  in  the  origi- 
nal bill ;  it  is  confined  to  matter  in  the  supplemental  bill. 

No  one,  on  reading  the  bill  or  supplemental  bill,  would 
imagine  that  the  claim  of  the  comj)lainants  extended  to  local 
bu.siness.  In  the  prayer  of  the  bill,  local  business  is  not 
alluded  to. 

As  to  the  effect  of  the  word  "  between,"  in  the  charter  of 
the  complainants,  it  may  mean  either  the  entire  distance  from 
city  to  city,  or  any  jiortion  of  said  distance.  13  Hoio.  80,  83, 
85.  We  must  give  to  it  the  interpretation  which  the  legisla- 
ture intended.  Counsel,  themselves,  give  different  meaning 
to  the  word  in  different  parts  of  the  original  and  supplemental 
bills.  The  legislature  have  attached  different  meanings  to  it. 
Act  of  1831,  §  3;  Act  of  1837,  §  3;  Act  o/  1842. 

It  is  urged  that  the  appropriate  redress  is  by  destroying  our 
road.  Such  relief  could  only  be  asked  on  the  assumption 
that  their  construction  of  the  law  is  right. 

If  the  construction  of  the  road  is  legal,  it  is  not  a  nuisance. 
-  In  attempting  to  abate  a  nuisance,  the  court  will  not  need- 
lessly do  injury  to  any  one.  All  that  will  be  done  will  be  to 
give  the  complainants  the  relief  to  which  they  are  clearly  en- 
titled, without  needlessly  prejudicing  the  interests  of  the 
defendants. 

If  the  directors  of  the  defendant  corporations  have  sworn 
false,  why  should  the  property  of  the  stockholders  be  sacri- 
ficed ? 

As  to  the  extent  of  remedy.  9  Paige  575  ;  1  Ibid.  197  ; 
1  Gall.  429. 

But  it  is  urged  that  the  court  should  destroy  the  road  by 
way  of  abating  the  nuisance,  because  the  defendants  have 
fraudulently  located  their  road,  not  only  in  violation  of  the 
charter,  but  for  the  express  purpose  of  violating  the  com- 


3U  CASES  IN  CHANCERY. 

Del.  &  Ear.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al 

])lainf\nts'  chartered  rights.  The  com])laint  is  that  the  road 
is  not  located  on  a  direct  line.  The  answer  avers  that  the 
deviation  is  only  a  distance  of  four  miles  from  a  straight  line 
between  the  beginning  and  ending  points.  The  cases  upon 
this  point  were  cited  upon  the  former  argument. 

The  defendants  admit  that  they  approached  the  city  of 
Philadelphia  as  near  as  they  could  consistently  with  their 
charter.  The  charge  of  fraud  is  utterly  denied.  As  early  as 
the  18th  of  March,  18G1,  they  gave  the  complainants  distinct 
notice  of  their  intention.  No  attempt  was  made  to  interfere 
with  the  operations  of  the  defendants  until  July,  1862.  A 
party  cannot  lie  by  and  permit  another  to  expend  his  money 
on  a  great  enterprise,  and  then  invoke  the  power  of  the  court 
for  its  destruction. 

Nor  can  the  complainants  complain  of  the  mislocation  of 
the  road.     If  wrong  is  done,  let  the  state  complain. 

We  have  the  answers  of  all, the  defendants,  clear  and  ex- 
plicit, that  they  selected  the  best  route  for  the  road  authorized 
in  their  charter,  so  far  as  the  character  of  the  ground  is  con- 
cerned. 

But  suppose  the  road  to  be  improperly  located,  how  much 
of  it  is  to  be  demolished  ?  Will  the  court  say  where  the  road 
is  to  be  built ;  where  the  point  of  intersection  of  the  two 
roads  shall  be?  Why  did  not  comjilainants  show  where  the 
road  ought  to  be  located,  or  what  better  point  of  intersection 
could  be  selected?  No  such  remedy  as  is  now  asked  for,  has 
been  granted  in  any  of  the  cases  cited  and  relied  upon. 

As  to  the  character  and  extent  of  the  complainants'  rights. 

The  complainants  insist  that  carrying  a  single  passenger 
or  a  ton  of  merchandise  on  any  portion  of  these  roads,  is  a 
violation  of  their  franchise. 

We  insist  that  all  the  complainants  are  entitled  to,  is 
protection  from  competition  in  the  transportation  of  mer- 
chandise from  city  to  city.  Act  of  Feb.  Ath,  1830,  §21.  Tiie 
language  of  this  act  admits  of  no  doubt.  Ad  of  Feb.  3(/, 
1831,  §  2,  supplement  to  Canal  act ;  act  of  Feb.  4,  1831,  §  6, 


OCTOBER  TERM,  1863.  345 

Del.  &  Ear.  Canal  and  C.  &  A.  K.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

7,  supplement  to  Railroad  charter.  Thus  far  specific  protec- 
tion is  given.     Nothing  is  said  of  competition. 

The  act  of  March  2(1,  1832-,  §  2,  first  uses  the  word  com- 
pete. The  phrase  is,  "  which  shall  be  intended  or  used  for 
the  transportation  of  passengers  or  merchandise  between  the 
cities  of  New  York  and  Philadelphia,  or  to  compete  in  busi- 
ness with  the  railroad  authorized  by  the  act  to  which  this 
supplement  is  relative." 

The  word  "  or  "  may  be  read  "  and,"  or  may  be  omitted. 
The  legislatui"^  never  intended  to  protect  intermediate  travel 
or  business. 

The  act  of  March  16th,  1854,  by  its  preamble,  shows  that 
the  design  of  the  act  was  to  protect  the  company  from  com- 
petition in  its  through  business  from  city  to  city.  This  act, 
on  the  face  of  it,  is  a  concession  by  the  companies  to  the 
state,  which  in  return  granted  privileges  to  the  company. 
By  the  terms  of  the  act  the  legislature  give  construction  to 
prior  acts.  The  company  accepted  the  acts,  and  thus  as- 
sented to  the  legislative  construction. 

A  competing  line  is  a  rival  line.  The  defendants'  road  is 
not  so  in  any  sense.  No  amount  of  freight  or  number  of 
j)assengers  worthy  of  notice,  are  carried  over  it.  A  line 
which  requires  detectives  to  discover  its  freight  business,  and 
which  requires  a  day  and  a  half  to  pass  from  city  to  city,  is 
not  a  competing  line. 

The  answer  states  that  troops  were  carried  by  order  of 
the  secretary  of  war.  This  was  responsive  to  the  bill.  The 
road  is  under  the  control  of  the  secretary  of  war. 

As  to  the  unconstitutionality  of  the  acts  under  which  the 
complainants  claim  their  exclusive  franchise.  Constitution 
of  the  U.  S.,  Art.  1,  §  8  ;  Gibbons  v.  Ogden,  5  Peters'  Cond. 
R.  562;  Ibid.  566-7.  See  opinion  of  Johnson,  J.,  as  to  the 
meaning  of  the  word  "  Commerce,"  Ibid.  589  ;  City  of  New 
York  V.  3Iiln,  11  Peters  104;  Opinion  of  Story,  J.,  Ibid. 
154,  58,  61  ;  7  Hoit\  401,  7,  12,  32,  64;  Corfield  v.  Coryell, 
4  Washington  C.  C.  R.  378. 

The  charter  of  the  complainants  regulates  the  intercourse 


346  CASES  IN  CHANCERY. 

Del.  &  Ear.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

between  the  states.  It  declares,  in  effect,  that  no  person  shall 
travel  or  transport  goods  by  way  of  the  Delaware  Bay  Rail- 
road. If  this  court  restrain  passengers  or  freight  from  going 
on  that  road,  will  it  not  be  an  exercise  of  the  power  to  regu- 
late commerce  between  the  states?  1  U.  S.  St(U.  at  Large 
G86 ;  2  Ibid,  578,  103,  ch.  XIII,  261,  §  1,  2 ;  3  Ibid.  405  ; 
4  Ibid.  188  ;  Constitution  of  U.  S.,  Art.  IV,  ^  2;  3  Stonfs 
Com.  673,  ch.  40,  §  1798-9  ;  Act  of  Confederation,  Art.  IV; 
Groves  V.  Slaughter,  15  Peters  515-16;  Livingston  v.  Van 
lagin,  9  Johns.  li.  526  ;  Conner  v.  Elliott,  18  How.  591-3  ; 
Corfield  V.  Coryell,  4   Wash.  C.  G.  R.  380 

Broioning,  for  the  Camden  and  Atlantic  Railroad  Com- 
pany. 

The  privileges  claimed  by  the  complainants  were  conferred 
on  the  joint  companies  by  the  act  of  March,  1832,  §  2.  On 
the  19th  of  March,  1852,  the  Camden  and  Atlantic  Railroad 
Company  was  incorporated  with  power  to  make  a  branch  to 
Batsto*.  On  the  3d  of  March,  1854,  the  Raritan  and  Dela- 
ware Bay  Company  were  incorporated  with  power  to  con- 
struct a  railroad  from  Raritan  to  Delaware  bay.  The  route 
prescribed  necessarily  crosses  the  track  of  the  Camden  and 
Atlantic  Railroad.  By  the  act  of  March,  1854  (supplement  to 
the  joint  companies  act),  their  exclusive  privileges  were  ex- 
tended to  1869,  with  a  declaration  in  the  preamble  of  what 
they  consisted.  This  supplement  was  passed  after  the  incor- 
poration of  the  defendant  companies.  If  the  supplement  en- 
larges the  rights  of  the  joint  companies,  such  extension  can- 
not interfere  with  the  corporate  rights  of  the  defendants. 

In  1862,  a  connection  was  about  to  be  formed  between  the 
Batsto  branch  and  the  Delaware  Bay  road  at  Atsion.  The 
complainants'  bill  was  then  filed  to  prevent  the  junction  of 
the  roads.  The  injunction  was  denied.  In  1863,  the  sup- 
plemental bill  was  filed  to  restrain  the  use  of  the  road,  on  the 
ground  that  the  use  complained  of  is  a  violation  of  the  com- 
plainants' exclusive  privileges. 


OCTOBER  TERM,  1863.  347 

Del.  &  Ear.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Del.  &  Rar.  Bay  R.  Co.  et  al. 

Upon  the  motion  for  the  preliminary  injunction  the  court 
held— 

1.  That  the  construction  of  these  roads  is  no  violation  of 
the  contract  of  the  state  with  the  complainants. 

2.  That  the  connection  of  the  roads  at  Atsion  would  be 
no  violation  of  the  contract. 

3.  That  the  defendant  corporations  may  lawfully  use  the 
connected  railway  in  carrying  passengers  and  merchandise 
between  any  points  in  New  Jersey. 

No  use  which  confines  itself  wholly  to  New  Jersey  is  a 
competition  in  business  with  the  complainants  within  the 
meaning  of  that  contract.  Through  business  alone  is  pro- 
hibited. This  conclusion  is  fully  sustained  by  authority.  All 
grants  to  corj)orations,  especially  of  exclusive  privileges,  are 
to  be  construed  strictly,  and  nothing  can  be  taken  by  impli- 
cation. Bridge  Co.  v.  Hobohen  L.  and  1.  Co.,  2  Beas.  81, 
94.     Tiiat  decree  was  sustaine<l  on  appeal. 

The  complainants,  then,  can  take  nothing  by  implication. 
If  there  be  a  doubt  as  to  the  extent  of  their  privileges,  they 
fail  in  their  claim.  Stourbridge  Canal  v.  Whceley,  2  Barn. 
&  Adolph.  792  ;  Mohaivk  Bridge  Co.  v.  Utica  and  Schen.  B. 
B.  Co.,  6  Paige  564  ;  Thompson  v.  T/ie  N.  Y.  and  Harlem 
B.  Co.,  3  Sandf.  Ch.  B.  625  ;  Perrine  v.  The  Ches.  Canal 
Co.,  9  How.  192  ;  Charles  Biver  Bridge  v.  Warren  Bridge, 
11  Pdprs  546  ;  Bichmond  B.  Co.  v.  The  Lousia  B.  Co.,  13 
How.  71. 

The  case  stands  now  substantially  as  on  the  motion  for  in- 
junction. The  business  of  the  defendants  has  been  wholly 
local.  Whatever  else  has  been  done  has  been  by  others,  for 
which  the  defendants  are  in  no  wise  resj)onsible.  It  has  been 
done  either  under  agreement  with  the  Philadelphia  and  East- 
tern  Transportation  Comi)any,  or  under  arrangement  with 
the  ferry  company  at  Camden,  or  under  authwity  of  the  sec- 
retary of  war  in  carrying  soldiers  and  munitions  of  war. 

What  has  been  done  by  the  Eastern  Transportation  Com- 
])any  was  without  the  knowledge  of  the  Camden  and  Atlantic 
Com[)any,  with  whom  the  agreement  was  made.    It  was  done 


348  CASES  IN  CHANCERY.' 

Del.  &  Ear.  Canal  and  C.  &  A.  K.  &  T.  Co.  v.  Del.  &  Ear.  Bay  R.  Co.  et  al. 

in  violation  of  their  wishes,  and  at  the  earliest  possible  mo- 
ment it  was  prohibited  by  them  ;  so  that  there  is  no  call  for 
the  interference  of  this  court. 

The  Eastern  Transportation  Company  are  not  before  the 
court.  No  valid  decree,  therefore,  can  be  made  affecting  the 
validity  of  their  contract. 

The  agreement  with  the  ferry  company  was  made  years 
ago,  before  the  Delaware  Bay  road  was  located,  and  with  no 
reference  to  the  operations  of  that  road.  It  was  made  in  good 
faith,  and  at  its  date  was  valid  and  legal.  The  only  objec- 
tion is  that,  when  the  connected  line  of  railway  was  made, 
its  operation  was  unfavorable  to  the  complainants.  The  rail- 
road company  were  the  mere  agents  of  the  ferry  company,  to 
receive  and  pay  over  the  fare  of  the  passengers.  At  most, 
it  affected  only  the  fare  of  passengers  from,  or  to  Port  Mon- 
mouth. The  contract  does  not  extend  to  the  transportation 
of  passengers  from  Port  Monmouth  to  New  York.  The 
through  tickets,  which  were  proved  to  have  been  used,  were 
issued  by  mistake,  and  were  afterwards  taken  up.  The  only 
through  business  established  by  the  evidence  is  the  carrying 
of  troops  and  munitions  of  war.  This  was  done  by  request, 
and  on  the  authority,  of  the  secretary  of  war.  The  railroad 
eonjpany  received  their  share  only  for  the  transit  between 
New  York  and  Baltimore.  The  answer  upon  this  point  is 
responsive,  and  must  be  overcome  by  evidence.  1  Cowen 
742  ;  4  Paige  368  ;  1  Beas.  408. 

The  government,  during  the  civil  war,  has  declaared  the 
roads  of  the  country  subje(;t  to  military  control.  The  order 
to  carry  soldiers  and  munitions  of  war  was  made  upon  these 
companies  in  connection  with  others. 

Under  an  act  of  congress,  a  general  order  was  made  by  the 
president  that  the  railroad  companies  should  be  subject  to  the 
order  of  the  secretary  of  war. 

An  attempt  by  tiiis  court  to  restrain  the  use  of  these  roads 
in  accordance  with  that  order,  wouKl  be  a  resistance  to  the 
government.  A  refusal  by  the  companies  to  carry  troops 
and   munitions  of  war  would   be  a  resistance  to  the  govern- 


OCTOBER  TERM,  1863.  349 

Del.  &  Rar.  Canal  and  C.  &  A,  R.  &  T.  Co.  v.  Del.  &  Rar.  Bay  R.  Co.  et  al. 

ment.     The  defendants  were  not  bouud  to  inquire  whether 
the  complainants  could  do  it  or  not. 

Transportation  for  the  government  was  not  a  common  car- 
rying of  goods.  S.  &  B.  R.  Co.  V.  L.  &  K  W.  R.  Co.,  17 
Adol.  &  Ellis  {N.  S.),  G(i6. 

If  it  be  objected  that  the  government  had  no  power  to 
make  such  order,  we  answer  it  was  in  obedience  to  the  gov- 
ernment; and  even  if  it  was  an  usur[>ed  power,  obedience 
might  have  been  compelled  by  armed  force. 

The  Camden  and  Atlantic  company  have  endeavored  to 
conform  to  the  decision  of  the  court  heretofore  pronounced. 
So  long  as  the  defendants  confine  themselves  to  local  busi- 
ness, and  enter  into  no  agreement  for  transportation  from 
city  to  city,  their  business  is  lawful.  They  have  no  connec- 
tion with  other  companies  who  are  carrying  goods,  and  are 
not  responsible  for  the  con<luct  of  the  forwarding  merchants. 
We  are  simply  carriers  of  their  goods  over  our  road.  We 
make  no  inquiry  as  to  their  destination,  and  are  under  no 
obligation  to  make  any.  If  freight  is  brought  to  our  depot, 
with  a  request  to  carry  and  a  tender  of  freight  charges,  it  cre- 
ates an  obligation  to  carry.  If  the  fare  of  passengers  to 
Port  Monmouth  is  tendered,  they  are  under  no  obligation  to. 
answer  what  their  destination  is.  Tliese  companies  must,  by 
agreement  among  themselves,  be  engaged  in  transportation 
of  freight  or  passengers  from  city  to  city,  before  the  cour)t 
can  lay  its  hands  upon  them.  Sanford  v.  Railroad  Co.,  12: 
Harris  378  ;  Sharpless  v.  Mayor  of  Philadelphia,  9  Harris 
169  ;  6  How.  382. 

Neither  this  court,  nor  the  state,  has  the  power  to  prohibit 
the  transportation  of  freight  or  passengers  upon  the  Dela- 
ware river,  or  Raritan  bay.  The  power  belongs  to  congress. 
The  constitution  confers  on  congress  the  power  to  regulate 
commerce.  Passenger  Cases;  Opinion  of  McLean,  J.,  7 
How.  399,  400  ;  Opinion  of  Wayne,  J.,  Ibid.  410^-11  ;  0{)in- 
ion  of  Taney,  J.,  dissenting,  J6?c?.  464;  State  v.  Wkeding 
Bridge  Co.,  13  How.  430;  Hayes  v.  Pacific-  Steamship  Co., 
17  Hoto.  596. 

Vol.  I.  Y 


350  CASES  IN  CHANCERY. 

Del.  &  Ear.  Canal  and  C.  &  A.  E.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al. 

Every  person  in  the  United  States  has  the  right  to  touch 
on  our  shores  to  load  and  unload.  A  necessary  riglit  for 
the  purposes  of  commerce,  an  incident  to  navigation,  can 
neither  be  taxed,  nor  prohibited  by  the  states.  As  a  necessary 
deduction,  all  citizens  may  navigate  the  Delaware  river  or 
Raritan  bay,  may  receive  or  discharge  passengers  at  Camden 
or  Port  Monmouth,  without  let  or  hindrance.  It  is  a  consti- 
tutional right,  wdiich  can  neither  be  hindered,  fettered,  or 
taxed.  It  is  an  individual  right,  pertaining  to  every  citizen 
of  the  United  States. 

If  individuals,  in  prosecution  of  a  lawful  commerce,  may 
land  passengers  or  merchandise  at  Camden  or  Port  Mon- 
mouth, these  defendants,  finding  them  at  these  places  on  tlie 
line  of  their  road  applying  to  be  carried,  have  a  right  to 
take  them  up  and  put  them  down  anywhere  along  the  line 
of  their  road.  This  would  be,  so  far  as  the  defendants  are 
concerned,  a  local  business,  within  the  previous  decision  of 
this  court. 

As  to  the  constitutionality  of  the  act  conferring  exclusive 
franchises  upon  the  complainants.  Sedgwick  on  Statutes 
234 ;  Const  U.  S.,  Art.  IV.,  §  2  ;  Lemon  v.  The  People,  20 
iV.  Y.  Rep.  607;  3  Stori/s  Com.  674,  §  1800;  Corfield  v. 
Coryell,  4  Wash.  C.  C.  B.  381;  9  Harris  169;  12  Harris 
378  ;  6  How.  382  ;  2  Beas.  84-7  ;  Const,  of  N.  J.,  Art.  IV., 
§  1  ;  Paterson  v.  The  Society,  4  Zab.  395  ;  9  Bacon's  Abr., 
"Statutes"  D  ;  1  Bl.  Com.  90  ;  4  Seld.  491  ;  Vattel  31  ;  Puf- 
fendorf,  p.  8,  ch.  5,  §  1  ;  Domats'  Civil  Law,  Book  1,  tit.  6,  § 
1  ;  Locke  on  Gov.  304-7  ;  11  Peters  466-7  ;  Opinion  of  Taney, 
J.,  Ibid.  548;  13  How.  71-7;  4  Wheat.  518;  3  Cruise's 
Pig.  {Greenl.  ed.)  ''Franchise,"  tit.  27,  §  29;  27  Vt.  140; 
Redjield  on  Railways  537,  §  1,  539,  §  3,  4  ;  2  Beas.  84 ;  10 
Amer.  Law  Reg.  (1862)  720 ;  5  McLean  148. 

Vroom,  for  the  Raritan  and  Delaware  Bay  Railroad  Com- 
pany. 

The  court,  while  protecting  the  complainants,  will  not  un- 
necessarily interfere  with   the  defendants.     Both    parties  de- 


OCTOBER  TERM,  1863.  351 

Del.  &  Rar.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

rive  their  powers  and  rights  from  the  sariie  source,  and  are 
entitled  to  equal  protection. 

The  comphiinants  are  not  satisfied  with  the  prayer  of 
the  original  bill,  and  now  ask  that  the  defendants'  road  be 
abated  as  a  nuisance,  mainly  on  the  ground  that  the  conduct 
of  the  defendants  has  been  fraudulent. 

No  such  relief  will  be  granted  unless  specially  prayed  for. 
Story's  Eq.  PL,  §  42-3. 

No  injunction  or  ne  exeat  \\'\\\  be  granted,  unless  specifically 
prayed  for.  The  defendants  might  then  shape  their  answer 
and  evidence  accordingly.  Otherwise  they  are  deprived  of 
tliis  right.  Grimes  v.  French,  2  Aik.  141  ;  Dormer  v.  For- 
tescue,  3  Ibid.  124. 

It  is  not  the  usual  province  of  a  court  of  equity  to  abate 
nuisances.  Its  ordinary  remedy  is  preventive.  The  abating 
of  nuisances  in  equity  is  a  recent  exercise  of  jurisdiction.  3 
Mi/lne  &  K  169. 

The  usual  remedy  for  public  nuisances  is  by  indictment  and 
trial  by  jury.  Private  nuisances  will,  in  some  cases,  be  abated. 
1  Johns.  Ch.  E.  611  ;  Gilbert  v.  Wiokle,  4  Sandf.  Ch.  R. 
357  ;  3  Johns.  Ch.  R.  282  ;  1  Green's  Ch.  R.  67 ;  1  Paige 
197  ;  9  Ibid.  575  ;  2  Story's  Eq.,  §  925-7  ;  1  Gall.  429;  8 
Sim.  193;  4  Ibid.  13;  2  Atk.  83;  2  Anstruiher  603;  10 
Frice  378  ;  1  Beas.  280. 

No  precedent  is  found,  of  any  such  decree  by  a  court  of 
equity  as  is  now  asked  for. 

An  injunction  to  abate  a  nuisance  can  only  be  granted 
where  the  erection  itself  constitutes  a  nuisance,  and  not 
where  the  injury  grows  out  of  the  use  of  the  erection. 

A  wall  or  dam  which  is  itself  a  nuisance,  will  be  abated. 
But  where  a  house  is  used  for  offensive  purposes,  and  the  use 
only  constitutes  the  injury,  the  house  will  not  be  destroyed 
to  abate  the  nuisance. 

Nor  will  the  nuisance  be  abated  because  the  defendants' 
conduct  has  been  fraudulent,  or  because  the  court  has  been 
deceived   or  imposed   upon.     The  order  will    not  be  made  to 


352  CASES  IN  CHANCERY. 

Del.  &  Rar.  Canal  and  C.  &  A.  E.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

operate  retro-actively.  The  jurisdiction  of  the  court  is  not 
punitive. 

Mr.  Vroora  further  insisted  at  length  upon  the  points 
made  by  Mr.  Browning,  upon  the  non-liability  of  the  de- 
fendants, and  of  the  unconstitutionality  of  the  acts  conferring 
the  exclusive  privileges  claimed  by  the  complainants. 

He  further  insisted  that  the  act  conferring  the  exclusive 
franchises  was  not  a  contract  between  the  state  and  the  com- 
plainants, within  the  meaning  of  the  constitution.  That  the 
Dartmouth  College  case  had  carried  the  doctrine  to  its  utmost 
length,  and  that  many  of  the  subsequent  cases  professing  to 
be  founded  upon  it,  were  not  law.  That  roads  and  highways 
were  a  public  necessity,  and  that  the  legislature  could  not 
deprive  itself  or  its  successors,  of  the  power  to  construct  and 
maintain  them 

Bradley,  for  the  complainants,  in  reply. 

I  shall  argue  the  case  as  if  no  decision  had  been  made 
opon  the  preliminary  motion. 

Upon  the  final  hearing,  I  shall  insist  we  are  entitled  to  an 
injunction  upon  facts  since  developed  alone,  or  upon  a  review 
of  the  whole  case,  admitting  the  preliminary  injunction  was 
rightfully  denied.  We  cannot  have  preventive  relief,  but  we 
may  have  what  is  equivalent  to  it ;  an  abatement  of  the 
nuisance  by  an  order — 

l.'To  take  up  the  track.  2.  To  suppress  the  lines  of  com- 
munication. 3.  To  prevent  the  parties  from  embarking  in 
business. 

The  complainants  have  such  a  contract  with  the  state  as  is 
alleged  in  pleading,  duly  accepted  by  the  complainants,  and 
performed  by  them.  The  contract  is  found  in  the  act  of 
March  2d,  1832.  The  original  charters  and  supplements, 
with  the  act  in  question,  together  constitute  a  contract,  with 
various  terms  and  stipulations,  between  tlie  companies  and 
the  state.  The  act  of  1832  is  but  one  of  several  acts  con- 
stituting the  entire  contract.  They  have  all  been  passed  in 
■pari  materia,  and  have  been  fused  into  one  complete  and 
connected  whole. 


OCTOBER  TERM,  1863.  353 

Del.  &  Rar.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al- 

It  is  said  the  act  of  1832  is  no  part  of  the  contract,  because 
it  was  not  a  part  of  the  original  charter,  and  was  passed  after 
the  companies  were  called  into  being.  It  is  now,  for  the  firet 
time,  insisted  that  a  contract  cannot  be  made  with  a  corpora- 
tion after  it  has  been  incorporated.  It  was  formerly  insisted 
that  there  could  be  no  contract  in  the  act  of  incorporation 
with  a  party  having  no  legal  existence,  and  without  actual 
consideration.  The  mere  acceptance  of  the  act  of  1832,  and 
the  construction  of  the  road,  is  consideration  enough.  When 
that  act  was  passed,  neither  canal  nor  railroad  was  finished. 
A  large  amount  of  expenditure  was  incurred,  and  all  the  loans 
to  the  companies  were  solicited  and  procured,  subsequent  to 
and  upon  the  faith  of  that  act.  The  evidence  in  the  cause 
clearly  establishes  that  fact. 

It  is  not  only  the  companies  in  their  corporate  cap?* 
are  entitled  to  protection,  but  the  stockholders  and  1 
ers  as  well. 

The  assent  to  the  act  of  1832,  was  filed  by  the  su 
of  each  company.     In  pursuance  of  the  provisions  of  the  ac^, 
one  thousand   shares  were  transferred  to   the  state,  and   the 
contract  was  thus  far  executed. 

That  the  contract  is  in  form  an  enactm.ent,  and  not  in  terms 
a  contract,  is  not  material.  Similar  language  has  been  held 
to  be  a  contract.  President,  &c.,  v.  The  Trenton  City  Bridge 
Co.,  2  Beos.  46;   2  Gray  21. 

But  supposing  it  is  not  a  contract,  but  a  mere  law,  the  legis- 
lature has  never  repealed  it,  has  assiduously  maintained  it, 
and  repeatedly  recognized  it.  The  state  does  not  ask  the 
court  to  abate  a  jot  or  tittle  of  the  law.  So  frequently  has 
she  affirmed  it,  that  it  cannot  be  taken  to  be  repealed  by  im- 
plication, by  the  mere  grant  of  the  charters  of  the  defendant 
corporations.  It  stands  on  the  statute  book  unrepealed,  and 
will  avail  for  our  protection. 

But  it  is  a  contract.  What  is  its  scope  and  extent  ?  What 
rights  does  it  secure  to  the  complainants? 

It  may  be  considered  as  executed  and  executory  ;  as  exe- 
cuted, it  is  equivalent  to  a  grant  of  lands  or  franchises,  analo- 


354  CASES  IN  CHANCERY. 

Del.  &  Ear.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al. 

gous  to  a  grant  at  common  law,  of  a  market  or  ferry,  which 
to  a  certain  extent  was  exclusive.  Tlie  king  could  not  after- 
wards grant  another  within  that  limit. 

We  were  invested  with  a  franchise  of  all  travel  between  the 
two  cities.  The  original  and  subsequent  acts  all  coalesce.  It 
was  an  effort  to  subserve  the  public  interest,  to  supply  a  great 
want  of  civilization.     The  grant  was  not  only  legal  but  wise. 

The  company  has  a  right  to  the  business  within  certain 
limits  on  both  sides  of  the  road.  The  contract,  in  this  respect, 
may  be  regarded  as  executory. 

As  to  the  effect  of  a  grant  of  a  ferry  or  market.  Charles 
River  Bridge  v.  Warren  Bridge,  7  Pick.  144  ;  11  Peters  619, 
630,  556,  557. 

The  act  of  1854  has  not  repealed  the  contract,  nor  is  it  a 
substitute  for  it.  It  denominates  the  previous  acts  contracts, 
but  does  not  recall  them.  Itconfirras  theact  of  1832.  That 
act  says  it  shall  not  be  lawful  to  covstruct  any  railroad  or 
roads,  &c. ;  the  road  is  not  to  be  built.  Its  language  is,  "  which 
shall  be  intended  or  used,  &c."  Intended  means  adapted. 
That  shows  the  intent.  The  defendants  intended  their  road 
to  be  used  for  an  illegal  purpose.  When  the  road  is  con- 
structed, they  say  that  ex  necessitate  it  is  subject  to  j>ublic  uses. 

It  is  said  that  "  or"  may  be  read  "and,"  and  it  frequently 
is  so,  but  why  ?     There  must  be  a  reason  for  it. 

The  contract  is  valid.  The  legislature  had  power  to  make 
it,  as  well  as  to  grant  a  ferry  or  a  bridge.  The  state  may  take 
the  franchise  by  right  of  eminent  domain.  They  may  pur- 
chase the  right. 

The  crown  has  immemorially  been  accustomed  to  grant 
ferries  or  markets.  Where  is  the  limit  to  the  power  of  the 
legislature  to  make  such  grant  ?  It  is  said  there  is  no  such 
power  granted  in  the  constitution.  The  power  of  legislation 
includes  it.  The  power  of  abrogation  does  not  render  the 
grant  void.  The  legislature,  untrammeled  by  constitutional 
limits,  may  enter  into  contracts.     The  constitution  takes  away 


OCTOBER  TERM,  1863.  355 

Del.  &  Rar.  Canal  and  C.  &,A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

from  subsequent  legislatures  the  power  of  repealing  it,  hut 
does  not  limit  the  power  of  making  it.  To  enter  into  such 
contract  does  not  take  away  the  i)Ower  of  subsequent  legisla- 
tures. The  constitution  does  that.  VatleVs  Law  of  Nations, 
Booh  1,  c/i.  21,  §  1,  6;  Sedgwick  on  Constitutional  Lma, 
625,  628  ;  9  /oAiw.  R.  673-4 ;  17  Co7in.  58  ;  2  Gray  32-4  ; 
7  iV.  Hamp.  R.  35  ;  6  Cranch  135  ;  Red  field  on  Railways 
640. 

In  the  Charles  River  Bridge  case  the  power  of  the  legisla- 
ture was  not  questioned.  It  is  difficult  to  limit  the  power  of 
the  legislature,  or  to  say  what  it  does  not  include.  The 
objection,  that  the  grant  of  exclusive  franchises  ties  the  hands 
of  future  legislatures,  applies  equally  to  every  grant  made  by 
the  legislature. 

Mr.  Bradley  also  contended  that  the  grant  was  not  uncon- 
stitutional, and  did  not  discriminate  in  favor  of  the  citizens 
of  this  state,  and  against  the  citizens  of  other  states,  and  cited 
Gibbons  v.  Ogden,  9  Wheat.  203;  Wilson  v.  Blackbird 
Creek  Marsh  Co.,  2  Peters  245  ;  People  v.  The  Saratoga  R. 
R.  Co.,  15  Wend.  131-6  ;  3Hlner  v.  The  New  Jersey  R.  Co., 
Justice  Grier's  opinion  in  Newark  Bridge  case;  State  v.  The 
Wheeling  Bridge  Co.,  13  How.  518  ;  2  Stw'y's  Com.  on  Con- 
stitution, §  1061—4*;  Sedgwick  on  Const.  Law  4  ;  19  Wend. 
13,  55 ;  3  Zab.  429  ;  20  Barb.  68  ;  S  E.  B.  Smith  440,  453. 

Counsel  reviewed  the  evidence  at  length  to  show,  and  con- 
tended that  it  established,  that  the  transportation  of  passen- 
gers and  freight  between  New  York  and  Philadelphia  is  car- 
ried on  over  the  connected  roads  of  the  defendants,  contraiy 
to  their  disclaimer  in  that  behalf  made  in  their  original 
answers,  and  that  this  is  done  by  themselves,  or  through  their 
aid  and  co-operation. 

The  answer  alleges  that  the  transportation  of  soldiers  was 
done  by  request  of  the  secretary  of  war.  The  defendants 
eet  up  justification  under  authority  of  general  government. 
They  took  order  for  leave  to  prove  the  fact.  They  were 
bound  to  prove  it.  The  answer  of  a  corporation  under  seal 
is  no  proof,  nor  is  the  answer  responsive,  2  Daiii,cirs  Ch.  Pr. 
983-4,  note;  1  Beas.  410;  2  Johns.  Ch.  R.  89. 


356  CASES  IN  CHANCERY. 

Del.  &  Ear.  Canal  and  C.  &  A.  E.  &  T.  CJo.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al. 

The  defendants  cannot  do  by  piecemeal,  what  they  cannot 
do  as  an  entirety.     2  Gray  39  ;  11  Louisiana  R.  257-8. 

The  line  is  competing.  It  was  designed  for  this  very  pur- 
pose. The  amount  of  business  done  is  not  material.  Alkyns 
V.  Kinnicr,  4  Exoheq.  780. 

The  remedy  by  injunction  to  abate  the  nuisance  is  the  true 
remedy.  It  is  not  aifected  by  the  fact  that  the  road  is  com- 
pleted. The  defendants'  acts  are  an  invasion  of  a  clear  and 
ascertained  right.  They  are  of  constant  continuance.  A 
constant  succession  of  actions  is  required  to  redress  the  in- 
jury. If  acquiesced  in,  their  actions  will  ripen  into  a  right, 
will  injure  the  character  of  our  franchise,  and  render  it  of  less 
value.  The  remedy  asked  is  analogous  to  an  injunction  to 
prevent  injury  to  patents  for  invention  and  to  copyrights.  2 
Story's  Eq.,  §  G 25-30-36-43 ;  2  Eden  on  Inj.  (  Waterman) 
271-5  ;  4  JoJms.  Ch.  B.  160  ;  9  Johns.  R.  585-8  ;  5  Johns. 
Ch.  i^.  111-12;  1  Johns.  Ch.  i^.  615  ;  17  Conn.  65-6.  The 
power  of  the  court  to  abate  the  nuisance  is  clear. 

As  to  the  remedy.  2  Eden  on  Inj.  388,  and  notes  ;  Drewry 
on  Inj.  260  ;  Redjield  on  Railways  511  ;  2  Story's  Eq.,  §  727  ; 
Saxton  157,  518. 

As  to  the  prayer  of  the  bill.  We  ask  that  the  junction  of 
the  roads  should  be  prevented.  We  are  eotitled  to  equitable 
relief  conformably  to  that  prayer.  1  DanieWs  Ch.  R.  Pr. 
435,  7wte  1  ;  Story  s  Eq.  PL,  §  40-1-2  ;  Mitford's  PL  38-9  ; 
Hill  V.  Beach,  1  Beas.  35  ;  Rennie  v.  Crombie,  Ibid.  457  ; 
Bailey  v.  Burton,  8  Wend.  344  ;  Wilkin  v.  Wilkin,  1  Johns. 
Ch.  R.  116-17. 

The  original  and  supplemental  bills  constitute  a  unit. 
They  present  but  one  case.  The  prayer  is  broad  enough  for 
the  relief  asked.  Lingan  v.  Henderson,  1  Bland's  Ch.  R, 
236. 

The  Chancellor.  The  complainants,  the  United  Dela- 
ware and  Raritan  Canal  and  Camden  and  Amboy  Railroad 
and  Transportation  Companies,  ask  to  be  protected  in  the  en- 


OCTOBER  TERM,  18G3.  357 

Del.  &  Rar.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

joymeut  of  certain  franchises  and  exclusive  privileges  granted 
to  thera  by  the  State  of  New  Jersey.  By  their  original  bill, 
they  asked  that  an  injunction  should  issue  to  prevent  the 
formation,  by  the  defendants,  of  a  continuous  line  of  convey- 
ance by  railroad  from  the  Delaware  river  to  Raritan  bay,  by 
a  junction  of  their  respective  roads,  which  might  be  used  for 
tiie  transportation  of  passengers  or  merchandise  between  the 
cities  of  New  York  and  Philadelphia,  or  to  compete  in^busi- 
ness,  between  the  said  cities,  with  the  railroads  of  the  com- 
plainants, or  that  might  in  any  manner  be  used,  or  intended 
to  be  used,  for  the  purpose  of  defeating  the  true  intent  of  the 
contracts  made  by  the  state  with  the  complainants,  to  pro- 
tect, until  the  first  day  of  January,  1869,  the  business  of  the 
complainants'  railroad  from  competition  between  the  cities  of 
New  York  and  Philadelphia. 

The  Camden  and  Atlantic  Railroad  Company,  one  of  the 
corporations  which  are  made  defendants,  by  virtue  of  their 
charter,  granted  on  the  17th  of  March,  1852,  have  con- 
structed a  railroad  from  the  city  of  Camden  through  the 
counties  of  Camden  and  Atlantic,  a  distance  of  about  sixty 
miles,  to  the  ocean  at  Absecom  inlet,  in  the  county  of  At- 
lantic. 

The  Raritan  and  Delaware  Bay  Railroad  Company,  the 
other  defendant  corporation,  by  virtue  of  their  charter, 
granted  on  the  third  of  March,  1854,  and  of  the  supplements 
thereto,  were  authorized  to  construct  a  railroad  from  some 
suitable  point  on  Raritan  bay,  eastward  of  the  village  of 
Keyport,  in  the  county  of  Monmouth,  through  the  counties 
of  Monmouth,  Ocean,  Burlington,  Atlantic,  and  Cape  May, 
to  Cape  Island,  on  the  Atlantic  ocean  ;  the  general  course  of 
the  route  of  the  road,  as  prescribed  in  the  charter,  being 
nearly  parallel  with  the  line  of  the  sea  coast,  and  in  its  direct 
course  crossing  the  Camden  and  Atlantic  railroad  nearly 
forty  miles  from  Philadelphia.  At  the  time  of  filing  the 
complainants'  bill  this  road  was  in  the  course  of  construc- 
tion, and  it  is  alleged  in  the  bill  that  the  company  are  not 
constructing    their    road    on  the    route    prescribed    by    their 


358  CASES  IN  CHAXCER.Y. 

Del.  &  Rar.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

cliarter,  but  that  the  road  is  made  to  diverge  ten  miles  to  the 
westward  of  the  direct  route  to  May's  Landing  (one  of  tiie 
points  in  the  prescribed  route),  to  Atsion,  near  tiie  extreme 
nortiiwest  corner  of  the  county  of  Atlantic,  for  the  jturpose 
of  approaching  nearer  to  the  city  of  Philadelphia,  and  by 
means  of  a  connection  with  the  Camden  and  Atlantic  road, 
formed  by  a  branch  road  from  Atsion  to  Jackson,  forming  a 
conti^iuous  and  convenient  railroad  line  to  Camden,  and 
thereby  interfering  with  the  chartered  rights  of  the  com- 
plainants. It  is  not  suggested  that  the  granting  of  these 
charters,  or  either  of  them,  by  the  legislature,  or  that  rail- 
roads constructed  in  accordance  with  the  route  prescribed 
in  these  acts  of  incorporation,  constitute  any  violation  of  the 
contract  made  by  the  state  with  the  complainants.  But  the 
complaint  is  that  the  junction  thus  illegally  attempted  to  be 
formed  between  tlie  roads  of  the  defendants,  much  nearer  to 
the  city  of  Philadelphia  than  was  contemj)lated  or  authorized 
by  their  charters,  will  open  a  communication  by  railroad 
and  steamboat  between  the  cities  of  New  York  and  Piiila- 
delphia,  which  will  compete  in  business  with  the  complain- 
ants' railroad,  and  thereby  infringe  their  chartered  rights. 

The  Camden  and  Atlantic  company,  by  their  answer,  al- 
leged that  they  were  authorized  to  construct  a  branch  road 
from  some  convenient  point  on  their  main  road,  to  be  deter- 
mined upon  by  the  company,  to  Batsto,  in  the  county  of 
Burlington ;  that  they  located  their  branch  railroad  from 
Jackson  station,  on  the  main  line  of  their  road,  to  a  point 
near  Atsion  (which  branch  constitutes  the  connecting  link 
of  the  two  roads  of  the  defendants) ;  that  the  terminus  of 
the  Batsto  branch  at  Jackson  is  the  most  convenient  and 
proper  point  on  their  railroad  from  which  to  make  a  branch 
solely  for  a  local  road  ;  that  it  is  the  most  practicable  route 
for  the  said  branch,  so  far  as  the  topography  of  the  country 
is  concerned  ;  and  that  the  branch  was  so  located  because  it 
was  supposed  that  such  location  will  best  promote  the  inter- 
est of  the  stockholders  and  of  the  people  of  the  counties 
through  which  the  road  passes,  and  will  best  answer  the  de- 


OCTOBER  TERM,  1863.  359 

Del.  &  Rar.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

sign  of  the  legislature  in  authorizing  such  branch.  They 
admit  that  an  additional  reason  for  thus  locating  the  Batsto 
branch  through  Atsion  was,  that  thereby  a  nearer  and  more 
direct  communication  will  be  opened  between  Batsto  and  the 
city  of  New  York,  and  points  in  the  line  of  the  Raritan  and 
Delaware  Bay  Railroad.  They  do  not  admit,  nor  do  they 
deny,  that  the  controlling  reason  for  that  location  of  the 
Batsto  branch,  was  to  aid  the  Raritan  and  Delaware  Bay 
Railroad  Company  in  their  purpose  of  approaching  nearer  to 
the  city,  and  by  means  of  a  connection  with  the  Camden 
and  Atlantic  road,  forming  a  continuous  and  convenient  line 
to  Camden. 

The  Raritan  and  Delaware  Bay  Railroad  Company,  and 
the  president  and  other  officers  of  the  company,  by  tlieir 
answer,  among  other  things,  admit  that  at  the  time  of  obtain- 
ing from  the  legislature  their  act  of  incorporation,  no  person 
interested  in  the  application  for  said  road,  had  any  intention 
of  constructing  a  railroad  to  transport  passengers  or  mer- 
chandise between  the  cities  of  New  York  and  Philadelphia. 
They  admit  that  the  road,  as  constructed,  diverges  about  ten 
miles  from  the  direct  route  to  May's  Landing,  but  say  that 
the  location  l)y  way  of  Atsion,  as  at  present  located,  is  the 
most  feasible,  expedient,  and  proper  location  for  the  railroad 
contemj)lated  in  the  act  of  incorporation,  and  that  tlie  direct 
route  from  Squankum  to  May's  Landing  was  surveyed  by  di- 
rection of  the  company  and  found  to  be  impracticable;  and 
that  the  terminus  of  the  Batsto  branch  (which  forms  the 
connecting  link  between  the  two  roads)  at  Jackson,  is  the 
most  convenient  and  proper  point  on  the  Camden  and  At- 
lantic road,  from  which  to  make  a  branch  solely  for  a  local 
road.  They  deny  that  any  agreement  has  been  made,  or  is 
intended  to  be  made,  for  the  transportation  of  freight  or  pas- 
sengers between  the  cities  of  New  York  and  Philadelphia. 
They  admit  that  they  and  the  Camden  and  Atlantic  Railroad 
Company  have  in  view  the  construction  and  perfecting,  by 
means  of  their  respective  railroads  and  a  convenient  con- 
nection   between    them,  of  a  continuous  and   convenient  line 


360  CASES  IN  CHANCERY. 

Del.  &  Ear.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

of  railway  communication  across  New  Jersey,  from  the  city 
of  Camden  to  Port  Monmouth,  but  they  deny  that  they  or 
any  of  thera  have  in  view  the  continuation  of  said  line,  at 
either  end  thereof,  by  steamboat  transportation  to  the  cities 
of  New  York  and  Philade]j)iiia,  for  the  purpose  of  using  the 
same  for  the  transportation  of  passengers  or  merchandise  in 
a  manner  which  will  violate  any  contract  between  the  state 
and  the  complainants,  or  any  provisions  of  the  acts  of  the 
legislature  referred  to  in  the  complainants'  bill.  They  also 
deny  that  any  contract  or  arrangement  made  by  them  is  cal- 
culated or  intended  to  form  a  continuous  line  of  railway  com- 
munication between  the  said  cities,  to  compete  in  business 
with  the  business  of  the  complainants,  contrary  to  their 
vested  rights.  They  admit  that  it  is  possible,  if  not  prohib- 
ited by  law,  that  a  line  of  communication  by  railroad  and 
steamboat  between  the  cities  of  New  York  and  Philadelphia 
might  be  opened  ;  but  they  say  that  their  railroad  is  not  a 
public  highway,  and  cannot  be  so  used  without  their  concur- 
rence and  consent,  and  as  they  have  made  no  arrangement 
whatsoever  so  to  use  the  same,  and  do  not  intend  any  unlaw- 
ful use  of  their  road,  such  use,  if  unlawful,  cannot  be  made, 
and  if  attempted,  can  be  restrained  by  the  courts.  They 
also  deny  that  they  intend  in  any  way  to  violate  the  char- 
tered rights  of  the  complainants,  or  that  they  intend  during 
their  existence,  to  violate  any  of  the  alleged  exclusive  privileges 
of  the  complainants.  And  the  defendants,  all  and  each  of 
them,  declare  that  it  is  not  and  never  has  been  their  inten- 
tion, by  the  construction  of  their  railroad,  or  its  connections 
with  the  Camden  and  Atlantic  railroad,  or  otherwise,  to  in- 
terfere with  the  complainants'  chartered  rights,  by  competing 
with  the  railroad  of  the  complainants  by  the  transportation 
of  passengers  or  merchandise  between  the  cities  of  New  Yoy\l 
and  Philadelphia,  or  otherwise. 

The  answers  having  been  filed,  and  affidavits  taken  touch- 
ing certain  allegations  in  the  answers,  the  case  was  heard 
upon  a  motion  fur  a  preliminary  injunction  as  prayed  for  iu 


OCTOBER  TERM,  1863.  361 

Del.  &  Rar.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

the  bill  to  restrain  the  defendants  from  forming  the  proposed 
junction  between  their  respective  roads. 

The  application  was  denied  upon  grounds  which  were 
briefly  assigned  at  the  time  of  the  decision. 

On  the  tenth  of  June,  1863,  the  complainants  filed  their 
supplemental  bill,  charging  that  since  the  former  hearing, 
the  Raritan  and  Delaware  Bay  Railroad  Company  have  com- 
pleted their  road  from  Port  Monmouth  to  Atsion,  and  iu 
combination  with  the  Camden  and  Atlantic  Railroad  Com- 
pany have  completed  the  branch  from  Atsion  and  Jackson, 
and  by  means  thereof  have  connected  the  two  roads,  so  as  to 
form  a  convenient  and  continuous  line  of  railway  from 
Camden  to  Port  Monmouth,  and  have  made  arrangements, 
by  contract,  for  continuing  the  line  by  means  of  steamboats, 
between  Port  Monmouth  and  New  York,  and  between  Cam- 
den and  Philadelphia,  so  as  to  form  a  complete  line  of  travel 
and  transportation  over  the  said  line  of  railroad  between  the 
cities  of  New  York  and  Philadelj)hia,  and  have  established 
lines  of  transportation,  both  of  freight  and  passengers,  be- 
tween the  said  cities  by  means  of  said  line,  and  are  actually 
engaged  in  such  transportation,  in  open  and  direct  violation 
of  the  chartered  rights  and  privileges  of  the  complainants. 

The  defendants  have  answered  ;  evidence  has  been  taken  ; 
and  the  cause  is  now  to  be  decided  upon  final  hearing. 

The  right  of  an  incorporated  company  to  be  protected  in 
the  enjoyment  of  their  franchises,  and  the  duty  of  a  court  of 
equity,  by  the  exercise  of  its  restraining  power,  to  afford  such 
protection,  are  familiar  doctrines  of  this  court.  These  prin- 
ciples have  been  so  often  declared,  and  are  so  constantly  re- 
cognized in  practice,  as  to  render  their  re-affirmance,  or  the 
citation  of  authorities  in  their  support,  an  unnecessary  for- 
mality. They  are  freely  conceded  as  the  recognized  law  of 
the  court.  The  power  of  the  court  is  exercised  for  the  pro- 
tection of  rights,  the  existence  of  which  is  clearly  estab- 
lished, and  so  far  only  as  may  be  essential  for  the  protection 
of  those  rights.     The  first  subject  for  consideration,  therefore, 


362  CASES  IN  CHANCERY. 

Del.  &  Ear.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

is  the  existence  and  extent  of  the  rights  foi*  which  protection 
is  asked. 

The  exclusive  privileges  claimed  by  the  complainants,  de- 
pend mainly  upon  the  acts  of  March  2d,  1832,  and  of  March 
16th,  1854.  By  the  second  section  of  the  act  of  1832,  it  is 
enacted,  "  that  it  shall  not  be  lawful  at  any  time  during  the 
said  railroad  charter  to  construct  any  other  railroad  or  rail- 
roads in  this  state,  without  the  consent  of  the  said  companies, 
which  shall  be  intended  or  used  for  the  transportation  of 
passengers  or  merchandise  between  the  cities  of  New  York 
and  Philadelphia,  or  to  compete  in  business  with  the  railroad 
authorized  by  the  act  to  which  this  supplement  is  relative." 

By  the  preamble  of  the  act  of  1854,  it  is  recited,  that  by 
reason  of  existing  contracts  between  the  state  and  the  com- 
panies, as  set  forth  in  their  acts  of  incorporation  and  other 
acts  in  relation  to  the  said  companies,  they  are  possessed  of 
certain  exclusive  privileges  which  prevent  the  construction, 
except  by  their  consent,  of  any  other  railroad  or  railroads  in 
this  state,  which  shall  be  intended  or  used  for  the  transporta- 
tion of  passengers  or  merchandise  between  the  cities  of  New 
York  and  Philadelphia,  or  to  compete  in  business  with  the 
railroads  of  the  said  companies.  And  by  the  first  section  of 
the  act  it  is  enacted,  "  that  it  shall  not  be  lawful,  before  the 
1st  day  of  January,  1869,  to  construct  any  other  railroad  or 
railroads  in  this  state,  without  the  consent  of  the  said  joint 
companies,  which  shall  be  used  for  the  transportation  of  pas- 
sengers or  merchandise  between  the  cities  of  New  York  and 
Philadelphia,  or  to  compete  in  business  between  the  said 
cities  with  the  railroads  of  the  said  joint  companies,  or  that 
may  in  any  manner  be  used,  or  intended  to  be  used,  for  the 
purpose  of  defeating  the  true  intent  of  the  act  passed  March 
2d,  1832,  or  of  this  act;  which  intent  and  meaning  are 
hereby  declared  to  be,  fully  and  effectually  to  protect,  until 
the  1st  day  of  January,  1869,  the  business  of  the  said  joint 
companies  from  railroad  competition  between  the  cities  of 
New  York  and  Philadelphia." 

It  is  difficult  to  conceive  of  a  more  express  engagement  on 


OCTOBER  TERM,  1863.  363 

Del.  &  Ear.  Canal  and  C.  &  A.  E.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  a). 

the  part  of  the  state,  or  of  a  clearer  recognition  of  the  ex- 
clusive rights  of  the  companies  than  is  contained  in  these 
statutes.  Whatever  doubts  may  be  entertained  as  to  the 
construction  of  the  contract,  tiiere  can  be  none  as  to  the  fact 
of  making  it. 

That  the  engagement  is  not  in  the  form  of  a  contract,  ren- 
ders it  none  the  less  obligatory.  It  is  the  form  in  which  the 
faith  of  the  state  is  usually  pledged,  and  in  which  contracts 
with  corporations,  touching  the  exercise  of  exclusive  fran- 
chises under  legislative  authority,  are  entered  into.  The 
same  form  was  adopted  in  the  grant  of  an  exclusive  franchise 
to  the  proprietors  of  the  bridges  over  the  rivers  Passaic  and 
Hackensack,  which  was  recognized  as  a  valid  contract  on  the 
part  of  the  state,  both  in  this'court  and  in  the  Court  of  Ap- 
peals.    2  Beas.  81,  503. 

The  grant  is  founded  upon  a  valuable  consideration  paid 
by  the  companies. 

It  was  made  as  an  inducement  to  private  enterprise  and 
private  capital,  to  constriict  an  important  iiighway,  required 
fur  public  travel  and  the  convenience  of  commerce,  and  which 
it  was  incunibent  upon  the  state  in  its  sovereign  capacity  to 
provide,  either  directly  by  its  own  means,  or  through  the 
agency  of  others. 

Whether  the  grant  was  wise  or  injudicious;  whether  the 
consideration  received  for  it  was  adequate  or  inadequate,  were 
questions  exclusively  for  legislative,  not  judicial  cognizance. 
These  considerations  cannot  affect  the  existence,  or  impair 
the  obligation  of  the  contract. 

The  obligations  created  by  the  act  of  1S32  and  by  other 
acts  affecting  the  complainants,  were  recognized  by  the  legis- 
lature in  the  preamble  of  the  act  of  1854,  as  existing  con- 
tracts, conferring  upon  the  companies  exclusive  privileges, 
which  prevented  the  construction  of  competing  roads,  and 
which  privileges  could  be  extinguished  only  by  purchase  or 
by  consent.  And  by  the  act  of  1854,  the  legislature  not 
only  acknowledge  the  existence  and  obligation  of  the  act  of 
1832,  but,  with  the  assent  of  the  companies,  they   limit  its 


864  CASES  IN  CHANCERY. 

Del.  &  Ear.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al 

duration,  re-affirm  its  eiigngemenls,  and  declare  its  meaning. 
It  would  seem  that  every  sanction  which  the  legislature  could 
give  to  its  contract  with  the  companies  has  been  given,  and 
that  every  guarantee  which  could  be  required  for  the  quiet 
enjoyment  of  the  franchises  granted  has  been  furnished.  By 
no  act  of  legislation,  has  the  existence  or  validity  of  the 
contract  been  called  in  question.  Grave  questions  have 
arisen,  and  different  opinions  have  prevailed,  as  to  the  con- 
struction and  effect  of  the  contract,  but  so  far  as  is  known, 
its  obligation  has  been  by  the  legislature  uniformly  acknowl- 
edged and  respected.  Under  such  circumstances,  it  would 
certainly  be  a  remarkable  spectacle  if  courts  of  justice,  whose 
peculiar  duty  it  is  to  maintain  the  authority  of  laws  and  en- 
force the  obligation  of  contracts,  should  be  found  denying 
the  existence  and  the  obligation  of  a  contract  which  the  con- 
tracting parties  admit,  and  the  binding  force  of  which  they 
acknowledge. 

But  it  is  objected  that  the  act  of  1832  is  null  and  void, 
inasmuch  as  it  derogates  from  the  power  of  subsequent  leg- 
islatures, upon  the  familiar  principle  that  acts  of  parliament, 
derogatory  from  the  power  of  subsequent  parliaments,  bind 
not.     1  Black.  Com.  90. 

The  power  of  the  legislature  to  make  a  contract  is  not 
denied.  It  is  an  inherent  attribute  of  sovereignty.  The 
constitution  does  not  deprive  the  legislature  of  the  power  of 
contracting,  but  only  of  violating  its  contract.  The  prohibi- 
tion is,  that  *'  no  state  shnll  pass  any  law  impairing  the 
obligation  of  contracts."  Independent  of  this  constitutional 
l)rovision,  any  subsequent  legislature  would  have  as  full 
power  to  annul  the  contract,  or  to  pass  a  law  inconsistent  with 
it,  as  the  legislature  had  to  make  it.  It  is  the  constitution 
then,  and  not  the  contract,  that  derogates  from  the  power  of 
subsequent  legislatures. 

The  inability  of  the  legislature  to  divest  itself  or  its  succes- 
sors of  its  sovereignty,  or  to  extinguish  the  trusts  committed 
to  its  custody  for  the  public  welfare,  is  not  questioned.  But 
the   legislature   not   only  may,  but   must  determine  in  what 


OCTOBER  TERM,  1<S63.  365 

Del.  &  Rar.  Canal  and  C.  &  A.  R  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 


manner  that  sovereignty  shall  be  exercised,  and  how  tliose 
trusts  shall  be  executed.  It  may  not  strip  itself  of  the  power 
of  taxation,  but  it  may,  in  the  legitimate  exercise  of  its  powers, 
exempt  the  property  of  corporations  or  of  individuals  from 
taxation  for  a  limited  time,  and  for  adequate  consideration. 
So  it  may  not  divest  itself  of  the  power  of  furnishing  neces- 
sary and  convenient  highways  for  public  accommodation.  But 
whether  they  shall  be  constructed  directly  by  state  officers, 
by  means  furnished  from  the  public  treasury,  or  by  the 
agency  of  public  corporations,  townships,  cities,  or  counties, 
by  means  raised  by  taxation,  or  by  the  agency  of  private 
corporations,  by  means  furnished  by  private  enterprise  and 
capital,  secured  and  stimulated  by  tiie  hope  of  reward,  is 
purely  a  question  of  legislative  discretion.  All  these  means 
and  agencies  of  providing  highways  have  been  from  time  to 
time  adopted,  without  a  question  as  to  the  right  of  the  legis- 
lature to  resort  to  either  of  <hem.  In  this  state  great  works 
of  internal  improvement,  requiring  large  outlays  of  capital, 
have  been  almost  universally  constructed  by  private  capital 
and  private  enterprise,  aided  in  some  instances  by  public 
bounty.  Bridges,  turnpikes,  railroads,  and  canals,  have  been 
thus  constructed.  It  has  been  neither  the  disposition  of  the 
people,  nor  the  policy  of  the  legislature,  to  incur  the  hazards 
of  such  enterprises,  and  experience  elsewhere  has  fully  de- 
monstrated that  the  policy  of  the  state,  in  this  regard,  is  a 
wise  one.  If  these  works  are  entrusted  to  private  enterprise, 
the  inducements  held  out  for  their  execution  must  rest  in 
legislative  discretion. 

The  doctrine  as  atteraj)ted  to  be  applied  by  counsel,  carried 
to  its  legitimate  conclusion,  would  deprive  the  legislature  of 
all  power  of  disposing  of  public  property.  The  sale  of  a 
part  of  the  public  domain,  in  one  sense,  derogates  from  the 
power  of  future  legislatures.  What  has  once  been  granted 
cannot  be  granted  again.  And  yet  the  [>ower  of  the  legis- 
lature, as  well  as  of  parliament,  to  alienate  the  public  do- 
main, to  convert  arms  of  the  sea,  where  the  tide  ebbs  and 
flows,  into  arable  land,  to  the  utter  destruction  of  the  common 

Vol.  I.  z 


3G6  CASES  IN  CHANCERY. 


Del.  &  Ear.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Ear.  &  Del.  ^Bay  R.  C^o.  et  al. 

rights  of  navigation  and  fi.sliing,  is  well  settled,  and  has  been 
repeatedly  exercised.  Gough  v.  Bell,  2  Zab.  4-57  ;  3  Ibid. 
624 ;  Loive  v.  Govett,  3  Barn.  &  Ad.  863  ;  The  King  v.  Mon- 
tague, 4  Barn.  &  Cr.  598. 

So  the  legislature  may  grant  the  franchise  of  taking  tolls, 
which  are  a  branch  of  the  prerogative,  upon  ferries,  bridges, 
or  highways.  If  once  granted,  the  same  franchise  cannot  be 
granted  again.  The  legislature  cannot  grant  to  another  the 
right  of  taking  tolls  upon  the  defendants'  road  without  mak- 
ing compensation.  To  some  extent,  the  grant  of  any  fran- 
chise must  in  this  sense  be  derogatory  of  the  power  of  a  sub- 
sequent legislature.  But  it  is  not  contended  that  the  legisla- 
ture has  no  power  of  granting  the  franchise  of  taking  tolls,  or 
of  graii^ing  any  other  property  which  the  state  may  own. 
This  was  not  contended  in  the  case  of  TJie  Charles  River 
Bridge  v.  Warren  Bridge,  11  Peters  420;  nor  did  the  court 
so  decide.  What  the  majority  of  the  court  in  that  case  did 
decide  was,  that  where  there  was  a  grant  of  the  franchise  of  a 
ferry  without  exclusive  words,  the  legislature  might  lawfully 
establish  another  ferry  to  the  detriment  of  the  farmer.  That 
the  grant  of  the  franchise  being  a  public  grant,  must  be  con- 
strued strictly,  and  that  nothing  would  pass  by  implication. 
Where  no  exclusive  privilege  was  expressly  granted,  none 
would  be  presumed  to  exist. 

The  extent  of  the  principle  as  applicable  to  this  case, 
fairly  stated,  is  simply  this  :  that  the  legislature  cannot  di- 
vest itself  of  the  power  or  the  duty  of  ])rovidi ng  necessary 
highways  for  public  use.  And  the  answer  to  the  objection  is, 
that  they  have  not  done  so.  The  legislature  have  the  same 
control  over  the  franchises  and  other  proi)erty  of  these  com- 
plainants, that  they  have  over  the  property  of  any  other  citi- 
zen. It  is  subject  to  the  right  of  eminent  domain.  By 
virtue  of  that  right,  if  the  public  necessities  so  require,  the 
exclusive  franchises,  as  well  as  the  other  property  of  these 
complainants,  may  be  taken  and  condemned  for  public  use 
upon  making  just  compensation.  West  River  Bridge  Co.  v. 
JDix,  6  How.  529 ;  Richmond  R.  R.  Co.  v.  Louisa  R.  R.  Co., 


OCTOBER  TERM,  1863.  3G7 

Del.  &  Kar.  Canal  and  C.  &  A.  E.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.Co.  eL  al. 

13  Hoic.  83;  Enfield  Toll  Bridge  Co.  v.  Hartford  &  New 
Haven  R.  E.  Co.,  17  Conn.  40  ;  Boston  &  Lowell  B.  R.  Co. 
V.  Salem  &  Lowell  R.  R.  Co.,  2  Gray  1. 

The  legislature,  therefore,  have  in  no  proper  sense,  by  the 
grant  of  exclusive  privileges  to  the  complainants,  derogated 
from  the  power  of  subsequent  legislatures  to  furnish  high- 
ways. The  only  question  is,  whether  just  compensation  shall 
be  made  to  the  couiplaiuants  for  their  property,  or  whether 
it  may  be  taken  and  apjiropriated,  in  disregard  of  the  honor 
of  the  state  and  of  the  rights  of  the  complainants. 

The  clause  in  the  act  which  renders  the  consent  of  the  com- 
panies necessary  to  legalize  the  construction  of  any  competing 
road,  cannot  aifect  the  validity  of  the  law  as  an  act  of  legis- 
lation. If  the  clause  were  erased,  the  legal  effect  and  con- 
struction of  the  contract  would  remain  unchanged.  An  en- 
gagement by  a  contracting  ])arty,  that  he  will  not  do  any  act 
to  the  prejudice  of  the  other  contracting  party  without  his 
consent,  is  in  effect  identical  with  an  absolute  and  unqualified 
engagement  not  to  do  the  act.  The  party  whose  interest? 
are  affected  may  consent  to  the  act,  and  thus  waive  his  righta 
under  the  contract.  It  in  no  sense  confers  on  these  corpo- 
i-ations  legislative  functions,  or  makes  legislation  subservient 
to  their  views.  Their  assent  is  no  part  of  legislation.  It 
does  not  create  the  law,  but  merely  avoids  the  constitutional 
objection  to  its  validity.  It  stands  upon  the  same  footing 
with  all  modifications  of  private  charters.  They  are  valid 
only  when  accepted  by  the  corporation  whose  rights  are  af- 
fected. 

The  existence  and  validity  of  the  grant  of  exclusive  privi- 
leges by  the  state  to  the  complainants,  which  they  ask  to  be 
protected,  are  satisfactorily  established.  But  an  important 
question  is  raised  touching  the  true  construction  of  the  con- 
tract, and  the  extent  of  the  exclusive  privileges  thereby 
conferred.  The  complainants  claim  that  by  virtue  of  their 
contract  they  are  entitled  to  protection  from  all  competition, 
not  only  upon  the  entire  route  between  the  cities  of  New 
York  and  Philadelphia,  but  from  all  competition  upon  any 


368  CASES  IN  CHANCERY. 

Del.  &  Ear.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al. 

and  every  part  of  the  route  ;  the  protection  extending  as  well 
to  the  way  business  as  the  through  business  between  the 
said  cities.  The  prohibitory  clause  declares  that  "it  shall 
not  be  lawful  at  any  time  during  the  said  railroad  charter  to 
construct  any  other  railroad  or  railroads  in  this  state,  with 
out  the  consent  of  the  said  companies,  which  shall  be  in- 
tended or  used  for  the  transportation  of  passengers  or  mer- 
chandise between  the  cities  of  New  York  and  Philadelphia, 
or  to  compete  in  business  with  the  railroad  authorized  by  the 
act  to  which  this  supplement  is  relative."  The  ambiguity  of 
the  enactment  is  occasioned  by  the  various  senses  in  which 
the  word  "  between  "  is  appropriately  used.  It  may  mean 
in  the  intermediate  space,  without  regard  to  distance,  or  it 
may  mean  extending  or  passing  from  city  to  city.  The  pro- 
hibition, therefore,  may  be  limited  to  the  througii  business 
alone,  or  it  may  extend  to  transportation  over  any  and  every 
portion  of  the  route.  But  if  the  design  of  the  enactment 
had  been  to  exclude  all  competition,  that  object  would  have 
been  effectually  attained  by  prohibiting  the  construction  of 
any  road  or  roads  intended  or  used  to  compete  with  the  busi- 
ness of  the  company.  The  clause  prohibiting  the  construc- 
tion of  a  road  for  the  transportation  of  passengers  and  mer- 
chandise between  the  two  cities  would  have  been  nugatory. 
But  the  primary  design  of  the  prohibition  is  indicated  by 
declaring:  first,  that  no  road  shall  be  constructed  for  the 
transportation  of  passengers  or  merchandise  between  the  two 
cities ;  and  then,  in  order  to  guard  against  any  evasion  of 
the  prohibition,  not  to  enlarge  it,  the  second  clause  of  the 
prohibition  is  added. 

That  this  was  the  real  design  of  the  enactment  will  appear 
by  reference  to  previous  legislation  on  the  subject.  The  de- 
sign of  the  incorporation  of  the  railroad  company  is  stated 
in  their  charter  to  be,  ''to  perfect  an  expeditious  and  com- 
plete line  of  communication  from  Philadelphia  to  New  York;" 
and  it  is  made  their  duty  to  provide  suitable  vessels  at  either 
extremity  of  their  road  for  the  transportation  of  passengers 
and  produce  "  from  city  to  city."    The  protection  afforded  to 


OCTOBER  TERM,  1863.  369 

Del.  &  Ear.  Canal  and  C.  «&  A.  R.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al. 

the  company  vvas,  that  if  the  state  should  authorize  any  other 
railroad  for  the  transportation  of  passengers  across  this  state 
from  New  York  to  Philadel[)hia,  which  should  be  constructed 
and  used,  and  which  should  commence  and  terminate  within 
three  miles  of  the  commencement  and  termination  of  the 
roads  authorized  by  the  act,  the  transit  duty  should  cease; 
and  that  if  any  other  railroad  should  be  constructed  for  the 
transportation  of  passengers  between  New  York  and  Phila- 
del[)hia,  it  should  be  liable  to  a  tax  not  less  than  the  amount 
payable  to  the  state  by  this  company. 

The  entire  prohibition  applies  to  roads  constructed  and 
used  for  the  transportation  of  passengers  across  the  slate, 
from  city  to  city.  The  whole  protection  afforded  is  to  the 
through  passenger  business.  It  is  clear  that  no  reference  is 
had  to  way  business,  and  that  no  limitation  was  designed  to 
be  placed  upon  the   chartering  or  construction  of  local  roads. 

By  the  act  of  1831,  it  is  enacted  that  when  any  railroad 
or  railroads,  for  the  transportation  of  passengers  and  pro- 
perty between  the  cities  of  New  York  and  Philadelphia, 
across  this  state,  shall  be  constructed  and  used  for  that  pur- 
pose, by  virtue  of  any  law  of  this  state  or  of  the  United 
States  authorizing  or  recognizing  said  road,  the  dividends 
upon  the  stock  transferred  by  the  company  pursuant  to  the 
act,  should  be  no  longer  payable,  and  the  stock  should  be  re- 
transferred  to  the  company.  All  the  protection  which  the 
company  sought,  all  that  the  legislature  granted,  was  to  the 
business  from  city  to  city.  This  was  the  prize  for  which 
these  then  rival  companies  were  struggling.  It  was  the  only 
object  deemed  worthy  of  competition,  or  worth  protecting. 
But  for  this  the  charter  would  not  have  been  asked,  nor  the 
road  constructed.  It  was  for  this  valuable  franchise  that 
the  consideration  was  paid  by  the  corporation  to  the  state, 
and  for  this  that  the  protection  was  given. 

All  these  provisions  have  reference  exclusively  to  the 
through  business  from  city  to  city.  Yet,  on  examination,  it 
will  be  found  that  they  were  not  effectual  for  the  end  designed. 
In  terms  they  limited  the  prohibition  either  to  a  single  road, 


370  CASES  IN  CHANCERY. 

Del.  &  Ear.  Canal  and  C.  &  A.  E.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al. 

or  to  a  road  to  be  constructed  within  a  limited  time,  or  within 
certain  definite  limits,  or  to  a  road  for  the  transportation  of 
passengers  only.  They  afford  protection  to  a  particular  line 
of  road.  This  clearly  did  not  fully  attain  the  object  of  se- 
curing full  protection  against  competition  between  the  cities. 
The  act,  therefore,  of  1832,  which  was  passed  after  the  union 
of  the  railroad  and  canal  companies,  applies  the  prohibition 
to  the  construction  of  any  other  railroad  or  railroads  any- 
where in  this  state,  at  any  time  during  the  continuance  of  the 
railroad  charter,  which  should  be  intended  or  used  ibr  the 
transportation  of  passengers  or  merchandise  between  the 
cities  of  New  York  and  Philadelphia,  or  to  compete  in  busi- 
ness with  the  railroad  of  the  complainants.  The  provisions 
of  the  acts  of  1830,  1831,  and  1832,  are  all  in  pari  materia, 
all  form  parts  of  one  entire  contract,  and  all  have  in  view 
the  same  general  object.  It  cannot  be  said  upon  any  sound 
rule  of  interpretation,  that  the  legislature,  by  the  use  of  a 
certain  term,  confessedly  of  equivocal  import,  appropriate  to 
express  the  intent  of  the  parties  as  expressed  in  former  acts, 
and  necessary  to  avoid  circumlocution,  have  essentially  en- 
larged the  scope  of  the  enactment  and  limited  the  power  of 
legislation. 

But  how  did  the  parties  to  the  contract  understand  it? 

By  the  act  of  1854,  the  true  intent  and  meaning  of  the 
act  of  1833  are  declared  to  be,  "fully  and  effectually  to  pro- 
tect, until  the  first  of  January,  1869,  the  business  of  the  said 
joint  companies  from  railway  competition  between  the  cities  of 
Neio  Yo7-k  and  Philadelphia." 

The  plain  and  natural  import  of  this  language,  as  well  as 
of  the  act  of  1832,  is  to  afford  protection  against  competi- 
tion in  business  from  city  to  city.  A  broader  interpretation 
requires  a  forced  construction  to  be  given  to  the  use  of  the 
terms  employed.  A  contract  by  A  that  he  will  not  engage 
in  the  forwarding  or  transportation  business  between  the 
cities  of  New  York  and  Philadelphia ;  or  that  he  will  not 
enter  into  competition  with  the  business  of  B  between  those 
cities,  would  not  be  violated   in  letter  or  spirit  by  A's  en- 


OCTOBER  TERM,  1863.  371 

Pel.  &  Rar.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  R.ir.  &  Del.  Bay  R.  Co.  et  al. 

paging  in  the  transportation  of  goods  hetwoen  Trenton  and 
Princeton,  between  Camden  and  Haddonfield,  or  between 
Atsion  and  Long  Branch  ;  unless,  indeed,  the  local  business 
should  form  one  link  in  a  chain  of  communication  reaching 
from  city  to  city,  and  should  thus  be  used  in  vi(>lation  of  the 
spirit  of  the  contract.  The  language  of  the  act  of  1854  is  not 
the  language  of  the  legislature  alone,  but  of  the  companies 
also.  Like  the  other  acts  affecting  their  corporate  rights  and 
privileges,  it  was  formally  accepted  by  the  companies.  Their 
assent  was  given  to  all  its  provisions.  It  expresses  their  con- 
struction of  the  contract.  It  is  no  violent  presumption  that 
it  was  approved,  if  not  framed,  by  their  own  counsel.  The 
act  was  passed  more  than  twenty  years  after  the  act  of  1832, 
to  which  it  gives  construction,  had  been  in  operation.  The 
ambiguity  of  its  phraseology  could  not  have  escaped  the  atten- 
tion of  the  companies  or  their  counsel.  In  1851,  the  ambi- 
guity created  by  the  use  of  the  word  "  between"  had  been 
animadverted  upon,  and  its  effect,  as  used  in  the  charter  of  a 
railroad  company,  in  a  clause  similar  to  that  now  under  dis- 
cussion, had  been  treated  as  a  vexed  question  by  the  Supreme 
Court  of  the  United  States.  Richmond  jB.  R.  Co.  v.  Louisa 
R.  R.  Co.,  13  How.  71.  They  were  familiar  with  the  rule 
of  interpretation,  that,  in  a  case  of  doubt,  the  construction  of 
a  grant  must  be  taken  most  strongly  against  the  corporation. 

Under  such  circumstances,  it  is  a  reasonable  presumption, 
that  if  the  intent  and  meaning  of  the  act  of  1832  had  been  to 
protect  against  competition,  not  only  the  business  between  the 
cities,  but  between  all  the  intermediate  places,  and  over  any 
and  every  part  of  the  route  between  the  said  cities,  it  would 
have  been  unequivocally  expressed.  That  it  was  not  so  done, 
that  the  ambiguity  was  not  removed  when  it  might  have  been 
done  with  facility,  is  the  strongest  evidence  that  such  was  not 
the  intention  of  the  contracting  parties. 

I  am  of  opinion  that  the  grant  of  exclusive  privileges  made 
by  the  legislature  to  the  complainants,  operates  to  protect 
only  the  through  business  from  city  to  city  against  competi- 


372  CASES  IN  CHANCERY. 


Del.  &  Ear.  Canal  and  C.  &  A,  E.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al. 

tion.  That  the  companies  have  the  franchise  of  taking  tolls 
upon  any  and  every  part  of  the  route  or  routes  between  the 
cities;  but  that  they  have  the  exclusive  franchise  only  in  re- 
gard to  passengers  and  merchandise  transported  over  the 
entire  route. 

But  if  it  be  admitted  that  it  is  not  clear  that  this  is  the  true 
construction  of  the  contract,  and  that  its  import  is  doubtful, 
the  construction  muststill  be  against  the  complainants.  It  is 
a  well  settled  rule  of  construction  that  public  grants  are  to  be 
construed  strictly  ;  and  in  all  cases  of  grants  of  franchises  by 
the  public  to  a  private  corporation,  the  established  rule  of  con- 
struction is,  that  any  ambiguity  in  the  terms  of  the  contract 
must  operate  against  the  corporation  and  in  favor  of  the  public. 
The  corporation  take  nothing  that  is  not  clearly  given  by  the 
act.  Proprietors  of  Stourbridge  Canal  v.  Whceky,  2  Barn.  & 
Ad.  793;  Beaiy  v.  Lessee  of  KnoivUr,  4  Peters  168  ;  Prov. 
Banh  v.  Billings,  4  Peters  514 ;  United  States  v.  Arredondo, 
6  Peters  738  ;  Charles  River  Bridge  v.  Warren  Bridge,  11 
Pebers  420;  Richmond  R.  R.  Co.  v.  Louisa  R.  R.  Co.,  13 
How.  81  ;  Proprietors  of  Bridges  v.  Lloboken  Land  Co.,  2 
Beas.  81. 

There  is  another  view  of  this  part  of  the  case  which  appears 
to  me  to  be  decisive  of  the  rights  of  these  parties,  so  far  as  the 
way  business  is  concerned. 

If  the  grant  of  exclusive  privileges  to  the  companies  extend 
to  the  way  business  as  well  as  to  the  business  from  city  to  city, 
it  must,  nevertheless,  receive  a  reasonable  interpretation.  It 
must  be  restricted  within  such  limits  as  may  be  fairly  deemed 
to  have  been  within  the  contemplation  of  the  contracting 
parties,  and  as  shall  appear  to  be  in  accordance  with  the 
reason  and  spirit  of  the  grant. 

It  was  a  principle  of  the  common  law,  that  if  one  had  a 
ferry  by  prescription,  and  another  erected  a  ferry  so  uear  it 
as  to  draw  away  its  custom,  it  was  a  nuisance.  The  same 
principle  applies  to  any  exclusive  privilege  created  by  statute. 
The  grant  must  be  construed  so  as  to  give  it  due  effect  by 
excluding  contiguous  and  injurious  competition.     The  com- 


OCTOBER  TERM,  1863.  37S 

Del,  &  Rar.  Canal  and  C.  &  A.  E.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

peting  route  for  local  business  must  be  so  near  the  route  of 
the  complainants'  road  as  mntcrinlly  to  affect  or  take  away  its 
custom.  Ogden  v.  Gibbons,  4  Johns.  Ch.  R.  160  ;  Newburgh 
Turnpike  Co.  v.  Miller,  5  Ibid.   112. 

If,  therefore,  the  grant  could  be  so  construed  as  to  protect 
the  grantees  against  the  construction  of  any  railroad  in  the 
immediate  vicinity  of  their  route,  and  against  competition  in 
local  or  way  business  upon  that  route,  it  would  not  give  to 
the  complainants  the  monopoly  of  all  local  business  however 
remote,  which,  for  want  of  railroad  accommodations  upon  the 
natural  and  direct  routes  of  travel  and  intercourse,  might  be 
driven  by  inconvenient  and  circuitous  routes  to  seek  its  des- 
tination over  the  complainants'  road.  The  grant  of  the 
exclusive  franchise  of  having  a  railroad,  and  of  carrying  pas- 
sengers and  freight  between  Camden  and  Amboy,  cannot 
confer  a  monopoly  of  the  business  between  Camden  and  Man- 
chester, or  Toms  River.  The  local  business  upon  the  two 
roads  cannot  be  regarded  as  a  competing  business. 

The  right  of  the  complainants  to  be  protected  in  the  ex- 
clusive enjoyment  of  their  franchise  of  taking  tolls  upon  their 
roads  for  through  business  being  established,  are  the  acts  of 
the  defendants  in  violation  of  those  rights? 

The  apj)lication  for  a  preliminary  injunction  to  restrain  the 
connection  between  the  defendants'  roads,  was  denied  on  the 
12th  of  August,  1862.  The  junction  was  formed,  and  the 
roads  thus  united  went  into  operation  in  September,  1862. 
The  route  is  continued  by  means  of  steamboats  between  Port 
Monmouth  and  New  York  and  between  Camden  and  Phila- 
delphia, which  run  in  connection  with  the  road,  so  as  to  form 
a  complete  and  uninterrupted  line  of  travel  and  transportation 
over  the  roads,  between  the  cities  of  New  York  and  Philadel- 
phia. In  eleven  months,  commencing  with  November,  1862, 
they  were  transported  over  these  roads,  between  Camden  and 
Port  Monmouth,  and  mainly  between  the  cities  of  New  York 
and  Philadelphia,  14,000  tons  of  freight  and  17,600  passen- 
gers. A  small  portion  of  the  freight  consisted  of  munitions  of 
war,  and  nearly  the  whole  of  the  passengers  were  soldiers,  car- 


;74  CASES  IN  CHANCERY. 


Del.  &  Ear.  Canal  and  C.  &  A.  E.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al. 

ried  over  the  road  for  the  United  States  government.  The 
transporting  of  merchandise  from  city  to  city,  is  carried  on  by 
the  agency  of  transportation  companies,  who  have  established 
offices  for  the  reception  and  delivery  of  fi'eight  in  each  city, 
from  which  offices  goods  are  regularly  shipped  over  the  entire 
route.  Daily  regular  freight  lines  are  thus  established.  The 
route  is  advertised,  the  attention  of  merchants  and  shippers  is 
directed  to  it  as  a  new  and  expeditious  route,  aiul  their 
patronage  solicited.  The  business  of  transporting  way  freight 
and  passengers,  is  conducted  by  the  railroad  companies  in 
their  own  names.  Ordinarily,  through  tickets  are  not  fur- 
nished, and  freight  is  advertised  to  be  carried  between  Cam- 
den and  Port  Monmouth  only.  But  arrangements  are  made, 
and  information  furnished,  which  enable  passengers  to  pass 
from  city  to  city  without  interru})tion,  and  both  passengers 
and  through  freight  reach  the  cities  from  the  termini  of  the 
roads  by  the  same  boats  which  accommodate  the  way  travel, 
and  which  are  provided  by  the  companies  for  the  accommoda- 
tion of  the  regular  lines  upon  their  respective  roads. 

The  through  freight  over  the  roads  has  been  chiefly  trans- 
ported by  the  Philadelphia  and  Eastern  Transportation  Com- 
pany, under  an  agreement  bearing  date  on  the  20th  of  De- 
cember, 1862,  entered  into  between  them  and  the  Raritan 
and  Delaware  Bay  Railroad  Company,  by  which  the  railroad 
com[)any  agree  to  transport  over  the  roads,  for  the  space  of 
ten  years,  at  stipulated  rates,  all  the  merchandise  and  freight 
of  every  description  delivered  to  them  by  the  transportation 
company,  and  that  the  entire  business  of  transporting  freight 
over  the  roads  between  Camden  and  Port  Monmouth,  should 
be  enjoyed  and  transacted  for  the  benefit  of  the  transporta- 
tion company,  excepting  the  way  freight,  the  traffic  in  coal, 
and  the  business  received  from  the  Penn.sylvania  Railroad 
Company,  the  control  of  which  the  railroad  company  reserve 
to  themselves.  The  transportation  company  is  constituted 
the  exclusive  agent  of  the  railroad  company,  with  power  at 
their  expense,  to  contract  for  the  transportation  of  freight 
over  the  line  from  Camden  to  Port  Monmouth  ;  and  the  trans- 


OCTOBER  TERM,  18G3.  375 

Del.  &  Rar.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Dei.  Bay  R.  Co.  el  al. 

portatiou  company  agree  to  exert  their  utmost  influence  to 
procure  freight  for  the  line,  and  to  furnish  for  transportation, 
over  saiil  line  of  railway,  exclusively,  all  the  freight  of  what- 
soever kind  or  description  which  they  may  or  can  receive, 
control,  or  influence  for  transportation,  into,  through,  across, 
or  beyond  the  state  of  New  Jersey. 

By  an  agreement  entered  into  on  the  25th  day  of  October, 
I861,  between  the  Camden  and  Atlantic  company  and  the 
Raritan  and  Delaware  Bay  com[)any,  it  was,  among  other 
things,  stipulated  tiiat  the  Camden  and  Atlantic  company 
should  construct  without  delay  the  Batsto  branch  of  their 
railroad.  That  the  Raritan  and  Delaware  Bay  company 
should  furnish  the  means,  control  the  construction,  designate 
the  point  of  termination  on  their  road,  and  determine  the 
cost  of  the  work.  That  the  Camden  and  Atlantic  company 
should  transport,  or  allow  the  Raritan  and  Delaware  Bay 
company  to  transport,  in  connection  with  their  road,  all  loco- 
motives, cars,  passengers,  and  freight  that  may  be  delivered 
to  them  by  the  Raritan  and  Delaware  Bay  company,  over 
their  road  and  branches,  between  the  points  of  interesection 
and  the  termini  of  their  road,  and  should  procure  staunch  anil 
comn)odious  ferry  boats  to  be  used  at  the  termini  of  tiieir 
road  and  branches  on  the  Delaware,  and  convey  promptly  to 
and  from  Philadelphia  and  the  termini  of  tlieir  road  at  Cam- 
den and  elsewhere  on  the  Delaware,  all  such  freight,  passen- 
gers, and  cars  as  the  Raritan  and  Delaware  Bay  company 
fchtmld  require.  That  the  number  of  trains,  the  times  of  run- 
ning, the  rate  of  speed,  the  charges  for  freight,  and  the  rates 
of  fare,  should  be  regulated  by  the  Raritan  and  Delaware 
Bay  com[)any.  That  if  the  Camden  and  Atlantic  company 
failed  tn  perform  any  part  of  their  agreement,  the  Raritan 
and  Delaware  Bay  company  were  authorized  to  perform  it  at 
the  cost  of  the  defaulting  parly. 

It  was  further  mutually  agreed  between  the  contracting 
parties,  that  if  legal  proceedings  were  instituted,  calling  in 
question  the  right  of  either  or  both  parties  to  carry  out  the 
contract  in  whole  or  part,  each  party  will  use  every  effort 


376  CASES  IN  CHANCERY. 

Del.  &  Rar.  Canal  and  C.  &  A.  K.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al 

promptly  and  in  good  faith  to  (lefend  itself  and  each  other, 
will  employ  the  best  counsel,  and  use  the  utmost  diligence  to 
defend  itself  or  themselves,  against  all  claims,  suits,  or  inter- 
ference; that  all  suits  at  law  or  in  equity  shall  be  carried  to 
the  court  of  last  resort;  and  that  all  expenses  of  litigation 
shall  be  borne  by  the  parties  in  a  designated  proportion. 
That  the  Camden  and  Atlantic  company  would  form  no  con- 
nection with  any  other  corj)oration  or  individuals,  for  the 
conveyance  of  passengers  or  merchandise  by  railroad  to  or 
from  Raritan  bay,  nor  make  any  connection  with  any  other 
intersecting  railroad,  between  the  junction  of  the  two  rail- 
roads and  the  termini  of  the  Camden  and  Atlantic  company 
on  the  Delaware,  north  of  the  Atlantic  road  ;  and  that  the 
Raritan  and  Delaware  Bay  company  will  make  no  connec- 
tions with  any  road  or  roads  that  either  directly,  or  by  con- 
nectiow,  run  to  the  Delaware  river,  north  of  Camden;  and 
that  the  agreement  should  extend  and  be  binding  on  the 
parties,  for  thirty  years  from  the  completion  of  the  E-aritan 
and  Delaware  Bay  Railroad  and  the  branches  of  the  Camden 
and  Atlantic  Railroad. 

By  the  supplemental  agreement  of  the  16th  of  February, 
1862,  the -Camden  and  Atlantic  company  agreed  that,  if  the 
agreement  of  the  25th  of  October,  1861,  shall  not  be  carried 
out  in  good  faith,  the  Raritan  and  Delaware  Bay  company 
shall  have  a  right  to  take  possession  of  and  manage  the 
Camden  and  Atlantic  road,  so  as  effectually  to  carry  out  the 
purpose  of  that  agreement,  and  they,  and  such  persons  as 
they  might  substitute,  were  constituted  the  attorneys,  irrevo- 
cable, of  the  Camden  and  Atlantic  company  for  that  purpose ; 
and  they  empowered  the  attorneys,  or  their  substitute,  to  con- 
sent to  a  decree  for  the  specific  performance  of  the  agreement, 
giving  to  the  Raritan  and  Delaware  Bay  company,  the  man- 
agement and  opci-ations  of  such  portion  of  the  Camden  and 
Atlantic  road,  and  of  the  ferries  in  connection  therewith, 
as  might  be  required  for  that  purpose. 

By  the  agreement  of  the  20th  of  December,  1862,  between 
the  Raritan  and   Delaware  Bay  company  and  the  Philadel- 


OCTOBER  TERM,  1863.  377 

Del.  &  Ear.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

phia  and  Eastern  Transportation  Company,  it  was  stipulated 
that  these  agreements  between  the  railroad  companies  should 
be  held  by  designated  agents,  for  the  benefit  of  the  trans- 
portation company,  by  whose  agency  the  through  business 
over  the  line  is  carried  on. 

The  real  character  and  design  of  these  contracts  cannot  be 
mistaken.  So  far  as  the  rights  of  the  com{)lainants  are  con- 
cerned, their  character  cannot  be  altered  by  tlie  fact,  that  in 
terras  the  transportation  is  limited  to  the  line  of  the  road. 
Taken  in  connection  with  the  other  evidence  in  the  cause, 
they  are  obviously  designed  to  promote  the  formation  of  a 
through  route  for  the  transportation  of  merchandise  between 
the  cities  of  New  York  and  Philadelphia.  Neither  company 
has  a  right  to  permit  its  road  to  be  used  for  such  purpose. 
They  cannot  effect  by  combination,  what  neither  can  do  law- 
fully. Nor  can  they  effect  by  the  agency  of  otliers,  what 
they  may  not  do  for  themselves.  The  companies  control  not 
only  the  railroad  line  across  the  state,  but  the  boats  at  either 
terminus  upon  the  Raritan  bay  and  the  Delaware.  The 
Camden  and  Atlantic  Company  are  under  stipulation  to  fur- 
nish boats  upon  the  Delaware.  The  boats  upon  the  Raritan 
bay  are  owned  in  whole  or  in  part  by  officers  of  tlie  company, 
and  are  used  in  connection  with  the  regular  daily  lines  upon 
the  road.  The  evidence  shows  that  arrangements  have  been 
entered  into,  with  direct  reference  to  the  formation  of  a  con- 
tinuous line  of  transportation  between  the  cities  of  New  York 
and  Phikidelphia,  and  that  the  transportation  of  freight  and 
passengers  from  city  to  city,  is  carried  on  over  the  defendants' 
roads  by  their  co-operation,  with  their  knowledge,  and  under 
and  by  virtue  of  agreements  entered  into  between  themselves 
and  with  others.  Tiie  fact  is  clearly  established,  that  the 
railroads  of  the  defendants  are  used  for  the  transportation  of 
passengers  and  merchandise  between  the  cities  of  New  York 
and  Philadelphia,  and  are  competing  in  that  business  with 
the  roads  of  the  complainants,  in  direct  violation  of  the  en- 
gagement made  by  the  state,  and  of  the  rights  and  privileges 
of  the  complainants. 


373  CASES  IN  CHANCERY. 

Del.  &  Rar.  Canal  and  C.  &  A.  E.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

The  only  roniaiiiing  inquiry  is,  to  what  relief  are  the  com- 
plainants entitled  ? 

An  injunction  is  the  proper  remedy  to  secure  to  a  party 
the  enjoyment  of  a  statute  privilege  of  which  he  is  in  the 
actual  possession,  and  when  his  legal  title  is  not  put  in  doubt. 
Livingston  v.  Van  Jngen,  9  Johns.  R.  506 ;  Croton  Turn- 
pike Co.  V.  Ryder,  1  Johns.  Ch.  R.  615. 

And  if  corporations  go  beyond  the  [)owers  which  the  legis- 
lature has  given  them,  and  in  a  mistaken  exercise  of  those 
powers  interfere  with  the  rights  of  property  of  others,  equity 
is  bound  to  interfere  by  injunction,  if  the  exigency  of  the  case 
require  it.  Agar  v.  Regenfs  Canal  Co.,  Cooper^s  R.  77  ; 
River  Dun  Nav.  Co.  v.  North  Midland  Railway  Co.,  1  Rail- 
way Cas.  154  ;  Bonaparte  v.  Camden  and  Amboy  R.  R.  Co., 
Baldwin^ s  R.  231  ;  Soudder  y.^Thc  Trenton  Delaicare  Falls 
Co.,  Saxton  694. 

The  complainant's  rights  are  clear  and  unquestioned.  They 
have  been  in  the  actual  enjoyment  of  their  franchise  for  more 
than  thirty  years.  The  defendants,  by  using,  or  permitting 
their  roads  to  be  used,  for  the  establishment  of  a  through 
route  for  the  transportation  of  freight  and  passengers  be- 
tween the  cities  of  New  York  and  Philadelphia,  have  ex- 
ceeded the  powers  conferred  upon  them,  and  interfered  with 
the  rights  and  the  property  of  the  complainants.  There  is 
nothing  in  the  charters  of  the  defendant  corporations,  or  of 
either  of  them,  which  expressly,  or  by  implication,  confers 
the  power  of  establishing  such  route,  or  the  franchise  of 
taking  tolls  thereon.  The  legislature  cannot  be  presumed  to 
have  intended  or  contemplated  any  grant,  inconsistent  with 
the  manifest  design  of  the  charters  of  the  complainants. 
Whether  the  complainant's  rights  have  been  invaded  by  a 
mistake,  or  a  fraudulent  exercise  of  power,  is  immaterial.  In 
either  event,  they  are  entitled  to  have  their  rights  protected 
and  the  wrong  suppressed.  The  complainants  are  entitled 
to  an  injunction  restraining  the  defendants  from  using,  or 
permitting  to  be  used,  their  roads,  or  either  of  them,  for  the 


OCTOBER  TERM,  1863.  379 

Del.  &  Ear.  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  E.  Co.  et  al. 

purpose  complained  of,  pursuant  to  the  prayer  of  the  supple- 
mental bill. 

The  original  hill  in  this  cause  was  filed  before  the  connec- 
tion between  the  defendants'  roads  had  been  formed,  and 
sought  to  enjoin  the  completion  of  the  work.  The  connection 
having  been  formed,  and  the  roads  used  for  an  unauthorized 
purpose,  in  violation  of  the  complainants'  rights,  it  is  now 
insisted  that  the  roa;ls,  as  constructed  and  used,  are  an  exist- 
ing nuisance,  which  siionld  be  ordered  to  be  abated,  and  that 
the  defendants  should  pay  to  the  complainants  the  damages 
sustained  by  their  unlawful  acts  in  the  premises. 

The  powers  of  a  court  of  equity  in  regard  to  uuisances,  are 
corrective  as  well  as  preventive.  It  may  order  them  to  be 
abated,  as  well  as  restrain  them  froiu  being  erected.  8tate  of 
Penn.  v.  Wheding  Bridge  Co.,  13  How.  519  ;  Van  Bergen 
v.  Van  Bergen,  2  Johns.  Ch.  R.  272  ;  Hammond  v.  Fuller, 
1  Paige  197  ;  PJarl  v.  De  Hart,  1  Beas.  280  ;  Washburn  on 
Easements  578. 

In  Earl  v.  De  Hart,  Chancellor  Williamson  said  :  "  There 
is  no  reason  why  the  court  should  not  exercise  a  power  to 
abate,  as  well  as  prevent  the  erection  of  nuisances,  in  clear 
cases."  The  nuisance  in  that  case  was  ordered  to  be  abated, 
and  the  decree  of  the  Chancellor  was  affirmed  by  the  unani- 
mous opinion  of  the  Court  of  Appeals.  In  the  case  of  The 
State  of  Pennsylvania  v.  The  Wheeling  Bridge  Co.,  13  How. 
519,  before  the  Supreme  Court  of  the  United  States,  the  bill 
was  filed  to  enjoin  the  erection  of  a  nuisance.  The  bridge 
was  completed  after  the  bill  was  filed.  The  court  said,  the 
defendants  having  had  notice  of  an  application  for  an  injunc- 
tion, before  the  defendants  had  thrown  any  obstructions  over 
the  river,  they  cannot  claim  that  their  position  is  strength- 
ened by  the  completion  of  the  bridge.  The  bridge  was  or- 
dered to  be  abated  as  a  nuisance  to  the  rights  of  the  com- 
plainant. 

Relief  in  this  form  is  not  asked  for,  either  in  the  original 
or  supplemental  bill.     As  a  general  rule,  such  relief  will  not 


380  CASES  IN  CHANCERY. 


Del.  &  Ear.  Canal  and  C.  &  A.  E.  &  T.  Co.  v.  Ear.  &  Del.  Bay  E.  Co.  et  al. 

be  granted  unless  made  the  suhject  of  a  special  prayer. 
Stoi'i/s  Eq.  PL  43.  But  this  ohjection  may,  perhaps,  be  re- 
garded as  too  formal  to  interfere  with  substantial  equity. 

The  bill  seeks  to  restrain  the  defendants  from  making  any 
connection  between  their  rqads,  so  as  to  form  a  continuous 
line  by  railroad  from  the  Delaware  to  the  Raritan,  which 
might  be  used  for  tlie  purpose  of  defeating  the  true  intent  of 
the  contract  made  by  the  state  with  the  complainants;  and 
also  to  restrain  the  Raritan  and  Delaware  Bay  comj)any  from 
further  constructing  their  road  on  the  line  to  Atsion,  or  on 
any  line  deviating  materially  to  the  west  of  a  direct  route 
from  Squankum  to  May's  Landing. 

The  application  is  based  upon  two  distinct  grounds,  viz. 

1st.  Because  the  divergence  of  the  Raritan  and  Delaware 
Bay  road  to  Atsion  from  the  line  of  the  direct  route  to  Capo 
May,  by  way  of  May's  Landing,  was  an  unauthorized  and 
fraudulent  deviation  from  the  route  prescribed  by  the  charter. 
And  2d.  Because  the  roads,  as  united,  were  intended  to  be 
used  in  violation  of  the  complainants'  rights,  for  the  trans- 
portation of  passengers  and  merchandise  between  the  cities 
of  New  York  and  Philadelphia. 

In  order  to  justify  the  issuing  of  an  injunction  to  restrain 
the  erection  of  a  nuisance,  or  to  abate  it  after  it  is  erected, 
it  must  aj)[)ear,  not  only  that  the  complainants'  rights  are 
clear,  but  that  the  thing  sought  to  be  enjoined  is  prejudicial 
to  those  rights.  The  fact  of  the  nuisance  must  be  clearly 
established.  Moharok  Bridge  Co.  v.  Utioa  and  Scheneo.  R.  R. 
Co.,  6  Paige  554.  So  far  as  the  complainants  are  concerned, 
the  erection  complained  of  is  no  nuisance,  however  unlawful, 
unless  it  occasion  injury  to  them.  The  ground  of  relief  is 
thus  stated  by  Mr.  Justice  Baldwin  :  "  If  the  complainants' 
rights  of  property  are  about  to  be  destroyed  without  authority 
of  law,  or  if  lawless  danger  impends  over  them  by  persons 
acting  under  color  of  law,  when  the  law  gives  them  no  power, 
or  when  it  is  abused,  misapplied,  exceeded,  or  not  strictly 
pursued,  and  the  act  impending  would  subject  the  party  com- 


OCTOBER  TERM,  18G3.  381 

Del.  &  Ran  Canal  and  C.  &  A.  R.  &  T.  Co.  v.  Rar.  &  Del.  Bay  R.  Co.  et  al. 

mitting  it  to  damages  in  a  court  of  law  for  a  trespass,  a  court 
of  equity  will  eujoiu  its  commission.  So  of  any  act  of  [)ecu- 
liar  trespass,  occasioning  grievous  mischief  or  lasting  injury, 
destructive  of  property,  a  I'igiit,  or  franchise."  Honaparte  v. 
Camden  and  Amboy  R.  R.  Co.,  Baldwins  R.  231. 

The  construction  of  a  railroad  over  the  land  of  a  complain- 
ant, without  lawful  authority,  will  be  enjoined  as  a  nuisance. 
It  is  a  permanent  ap})ropriation  of  the  land  of  the  complain- 
ant, and  an  irreparable  injury  to  his  freehold.  So  if  a  bridge 
be  erected  without  lawful  authority  across  a  navigable  river, 
to  the  prejudice  of  the  rights  of  navigation,  the  structure  itself 
is  a  nuisance,  and  will  be  al)ated  at  the  instance  of  a  party 
injured.  But  the  defendants'  roads  are  not  erected  ujion  the 
lands  of  the  complainants  ;  they  do  not  obstruct  their  right 
of  way  ;  they  destroy  no  right  or  franchise  of  the  complain- 
ants, which  would  subject  the  defendants  to  damages  at  law. 
How,  then,  do  they  constitute  a  nuisance,  or  entitle  the  com- 
plainants to  a  remedy  by  injunction  ?  It  is  not  the  structure, 
but  the  use  of  the  roads  in  violation  of  the  com[>lainants'  fran- 
chise, which  creates  the  nuisance. 

The  road  having  been  constructed,  even  if  unauthorized,  it 
cannot  be  abated  as  a  nuisance,  as  it  occasions  no  injury  to 
the  complainants.  If  there  be  any  rotun  for  doubt  whether 
the  location  of  the  defendants'  road  to  Atsion  is  authorized 
by  the  charter,  an  order  to  abate  it  would  occasion  certain  loss 
and  injury  to  the  defendants,  without  any  corresponding  benefit 
to  the  complainants.  An  injunction  to  restrain  the  use  of  the 
roads,  as  prayed  for  in  the  complainants'  bill,  is,  under  the 
circumstances,  the  only  ap{)ropriate  remedy. 

Relief  in  this  form  is  sanctioned  by  authority  and  precedent. 
Boston  and  Lowell  R.  Co.  v.  Salem  and  Lotoe/l  R.  Co.,  2  Gray 
1  ',  Pontchartrain  R.  Co.  v.  New  Orleans  and  Carrollton  R. 
Co.,  11  Louisiana  An.  R.  253. 

The  closing  of  a  read  used  as  a  highway  for  travel,  by  in- 
junction, could  only  be  justified  by  the  clearest  necessity. 

It  will  be  referred  to  a  master,  to  take  an  account  of  all 
the  through  passengers  and  freight  which  have  been  carried 

Vol.  I.  2  a 


382  CASES  IN  CHANCERY. 

over  the  road  since  tlie  opening  of  the  route;  and  also  all 
damages  wliieli  the  comj)hiinants  have  sustained  tiiereby.  In 
taking  tiie  account,  the  master  will  include  all  the  soldiers, 
horses,  baggage,  and  munitions  of  war  that  have  been  trans- 
})orted,  distinguishing  this  part  of  the  account  from  ordinary- 
business. 

No  proof  has  been  offered  in  supjiort  of  the  allegation  of 
the  answer,  that  they  were  carried  t)ver  the  roads  of  the  de- 
fendants by  order  of  the  secretary  of  war,  or  by  orders  of  the 
general  government.  Should  it  appear  before  the  master  that 
any  such  orders  were  made,  he  will  report  the  evidence  thereon, 
and  the  disposition  of  that  part  of  the  case  will  be  reserved 
till  the  coming  in  of  the  report. 

Modified  and  Affirmed,  3  C  E.  Gr.  540. 

Cited  to  Carlisle  v.  Cooper,  6  C.  E.  Gr.  581  ;  Black  v.  Drl.  &  Rar.  Can. 
Co.,  7  C.  E.  Gr.  19'J,  401-403;  Penn.  R.  R.  Co.  v.  Nat.  R.  R.  Co., 
8  a  E.  Gr.  455  ;  Black  v.  Del.  <£•  Rar.  Can.  Co.,  9  C.  E.  Gr.  494  ;  Afri- 
can M.  E.  Church  v.  Conover,  12  C.  E.  Gr.  161. 


David  Hopper  vs.  The  Executors  of  John  Maleeson 
and  others. 

1.  The  )>ower  to  sell  lanrl  for  llie  payment,  of  tnxes,  is  a  naked  power, 
not  coiipled  with  an  interest,  and  must  be  exercised  in  strict  accordance 
with  the  provisions  of  the  statute.  Every  prerequisite  to  the  exercise  of 
the  power  must  precede  it. 

2.  To  establish  a  title  under  a  sale  for  taxes,  it  is  incumbent  on  the  pur- 
chaser to  show  tliat  all  the  prerequisites  to  the  exercise  of  tlie  power  of 
Bale  have  been  comjjlied  with.  The  deed  is  not  even  prima  facie  evidence 
of  that  fact. 

3.  It  is  essential  to  the  validity  of  a  sale  of  land,  under  the  "  act  to  make 
taxes  a  lien  on  real  estate  in  the  county  of  Passaic,  and  to  authorize  the 
Bale  of  the  same  for  the  payment  thereof,"  {Pamph.  L.,  1852,  p.  247,)  that 
it  should  appear  that  the  tax  was  assessed  on  account  of  the  property  sold. 

4.  Tlie  recital  of  the  (ax  warrant,  "  whereas  it  appears  to  the  mayor  and 
aldermen  of  the  city  of  Paterson,  that  an  assessment  of  four  dollars  and 
fifty  cents  of  taxes,  &c.,"  is  not  legal  evidence  of  the  fact  of  an  assessment, 
nor  of  demand  of  payment. 

5.  The  assessment  itself  is  the  only  competent  and  legal  evidence  of  the 
fact  of  an  assessment. 

G.  Where  the  tax  warrant  directs  a  sale  to  be  made  to  raise  a  sum  larger 
than  the  whole  amount  due,  it  is  a  clear  excess  of  authority,  and  render* 
the  warrant,  so  far  as  it  aflects  the  land  in  question,  null  and  void. 


OCTOBER  TERM,  1863.  383 

Hopper  V.  Ex'rs  of  Malleson  et  al. 

7.  Even  if  all  (he  requirements  of  tlie  statute  had  been  strictly  complied 
with,  so  as  to  confer  ii)n)ii  the  imrchaser  at  sucli  sale  a  valid  title  against  the 
heirs  of  the  former  owner,  and  all  claiming  under  them,  a  prior  mortgage 
given  by  their  ancestor  would  not  tliereby  have  been  extinguished. 

8.  The  phrase  owner  or  owners  (Nix.  Di'i.  853,  §  77,  and  Pamph.-  L.,  1852, 
p.  249,  I  7,)  was  used  to  denote  the  owner  of  an  eslute  in  poh-session  at  the 
time  of  the  assessment,  and  not  a  prior  owner,  or  the  owner  of  an  estate  in 
expectancy,  or  of  any  executory  or  contingent  interest,  and  the  design  of 
the  act  was  to  make  the  interest  of  such  owner  only,  and  those  claiminjj 
under  him,  liable  for  the  tax  assessed. 

9.  The  right  of  a  mortgagee  is  not  defeated  by  a  tax  sale,  where  tlie 
mortgage  was  not  given  by  those  who  were  owners  of  the  land  at  the  tim« 
of  the  assessment,  or  against  whom  the  tax  was  assessed,  but  is  a  title  para- 
mount to  theirs.  Such  mortgage  is  a  valid  and  subsisting  encumbrance 
upon  the  land  in  the  hands  of  the  i)urchaser  at  the  .sale. 


The  case  was  heart!  upon  the  bill  and  [iroofs. 
GledldU,  for  complainant. 

The  Chancellor.  The  mortgai^e  which  the  complain- 
ant seeks  to  foreelose,  was  given  by  Malleson  and  wife  on  the 
eleventh  of  October,  1847,  upon  a  house  and  lot  in  the  city 
of  Paterson.  On  the  fifteenth  of  January,  1848,  the  mort- 
gagor died.  Upon  his  death,  the  legal  title  to  the  mortgaged 
premises  descended  to  his  children,  some  of  whom  were  mi- 
nors. By  his  will  the  executors  were  authorized  to  sell  the 
land,  and  in  the  meantime  to  aj)ply  the  net  rents  and  profits 
to  the  support  and  education   of  his  two  youngest  childen. 

In  1858  the  premises  were  sold  for  a  term  of  sixty  years, 
for  the  sum  of  $36.41,  by  virtue  of  a  tax  warrant,  to  satisfy 
$20.70,  the  arrears  of  taxes  which  were  assessed  on  account 
of  the  land,  against  the  estate  of  Malleson,  for  the  years 
1854-5-6,  together  with  fees,  costs,  and  expenses.  The 
value  of  the  lot  is  about  $900.  The  defendants  claim  that 
the  purchaser  acquired  an  absolute  title  to  the  premises,  and 
that  all  other  rights  in,  or  encumbrances  upon  the  jiroperty, 
are  extinguished. 

The  only  ground   of  controversy  is,  whether  the   title  ac* 


384  CASES  IN  CHANCERY. 


Hopper  V.  Ex'rs  of  Malleson  et  al. 


quired  under  the  sale  for  taxes  is  valid,  and  if  valid,  whether 
it  is  paramount  to  the  title  of  the  mortgagee. 

The  power  to  sell  land  for  the  payment  of  taxes,  is  a  naked 
power,  not  coupled  with  an  interest,  and  must  be  exercised 
iu  strict  accordance  with  the  provisions  of  the  statute. 
Every  prerequisite  to  the  exercise  of  the  power  must  pre- 
cede it.  To  establish  a  title  under  a  sale  for  taxes,  it  is  in- 
cumbent on  the  j)urchaser  to  show  that  all  the  prerequisites 
to  the  exercise  of  the  power  of  sale,  have  been  complied 
with. 

The  deed  is  not  even  prima  facie  evidence  of  that  fact. 
Stead's  Ex'rs  v.  Course,  4  Cranch  403  ;  Williams  v.  Peyton's 
Lessee,  4  Wheaton  77 ;  Sharp  v.  Spcir,  4  Hill  76 ;  Early  v. 
Doe,  16  How.  010,  and  cases  there  cited. 

The  act  under  which  this  sale  was  made,  declares  that  the 
tax  shall  be  and  remain  a  lien  on  the  real  estate,  on  account 
of  which  the  assessment  shall  be  made.  Pampli.  Laws 
1852,  p.  247.  There  is  no  competent  evidence  that  the  as- 
sessment for  the  year  1854  was  n:jade  on  account  of  the  land 
which  was  sold  for  the  payment  of  the  tax.  The  assessment 
for  that  year  contains  no  description  whatever  of  the  land 
assessed.  Opposite  the  words  "estate  of  John  Malleson," 
under  the  column  headed  real  estate,  is  the  following  entry  : 
"  1  H.  &  1  L."  It  may  be  conjectured  that  the  entry  was 
designed  to  indicate  one  house  and  lot,  on  account  of  which 
the  assessment  was  made.  But  it  does  not  appear,  nor  can 
it  be  even  conjectured  from  anything  apparent  on  the  as- 
sessment, what  house  or  lot  was  intended  to  be  indicated.  It 
is  essential  to  the  validity  of  the  proceedings,  that  it  should 
appear  that  the  tax  was  assessed  on  account  of  the  property 
sold.  There  is  no  evidence  whatever  of  the  fact,  except  a 
recital  in  the  tax  warrant  in  these  words  :  "  whereas  it  ap- 
pears to  the  mayor  and  alderman  of  the  city  of  Paterson, 
*  *  *  that  an  assessment  of  four  dollars  and  fifty  cents 
of  taxes  for  the  year  1854,  was  made  by  the  assessor  of  the 
South  Ward  against  the  estate  of  John  Milieu,  on  account  of 
the  following  lots  of  land  and  premises;"  describing  the  lot 


OCTOBER  TERM,  18G3.  385 

Hopper  V.  Ex'rs  of  Malleson  et  al. 

ill  question.  Assiitning  that  IMIllen  is  a  clerical  mistake  for 
Malleson,  how  di^l  the  fact  a[)j)ear  to  the  mayor  and  alder- 
men that  any  such  assessment  was  made  ?  Certainly  not  by 
(he  assessment  itself,  which  is  the  only  competent  and  legal 
evidence  of  that  fact.  The  recital  of  the  warrant  is  not  legal 
evidence  of  the  fact  of  an  assessment,  nor  of  demand  of  pay- 
ment. There  must  be  other  and  competent  evidence  that 
there  was  an  assessment,  and  that  it  was  legally  made. 

The  tax  warrant  recites  that  the  sum  of  seven  dollars  and 
fifty  cents  was  assessed  for  the  year  1856,  and  directs  a  sale 
to  be  made  to  raise  $21.00,  for  taxes  assessed  against  the  land 
for  the  years  1854-5-6.  It  a|)j)ears  by  the  duplicate,  that 
the  tax  assessed  for  the  year  1856,  was  but  $7.20,  and  that 
the  whole  amount  due  for  taxes  from  the  estate  of  Malleson, 
was  but  $20.70.  This  was  a  clear  excess  of  authority,  and 
rendered  the  warrant,  so  far  as  it  affects  the  land  in  question, 
null  and  void. 

These,  with  other  objections  equally  vital,  are  fatal  to  the 
validity  of  the  sale  for  taxes.  No  valid  title  was  acquired  by 
the  purchaser  under  that  sale,  and  none  could  be  transferred 
to  his  alienees. 

But  if  the  prerequisites  to  the  sale  had  been  complied 
with,  and  the  power  had  been  exercised  in  strict  conformity 
with  the  statute,  so  as  to  confer  a  valid  title  against  the  heirs 
of  John  Malleson  and  those  claiming  under  them,  I  think  it 
would  not  have  extinguished  the  mortgage  of  the  complain- 
ant. 

The  tax  sale  was  made  under  the  provisions  of  "an  act  to 
make  taxes  a  lien  on  real  estate  in  the  county  of  Passaic,  and 
to  authorize  the  sale  of  the  same  f  )r  the  jjayment  thereof," 
approved  March  19th,  1852.  Pampli.  L.  247.  By  the 
second  section,  it  is  enacted  that  any  assessment  of  taxes 
made  in  said  county  against  any  person,  on  account  of  any 
real  estate  of  such  person  or  body  corporate,  shall  be  and 
remain  a  lien  on  all  the  lands,  tenements,  hereditaments,  or 
real  estate,  on  account  of  which  said  assessment  sliall  be 
made,  with  lawful  interest,  and  costs  and   fees  in  relation  to 


386  CASES  IN  CHANCERY. 


Hopper  V.  Ex'rs  of  Malleson  et  al. 


the  assesssraent  ainl  collection  thereof,  for  the  space  of  five 
years  from  the  time  when  the  taxes  became  payable.  By 
tiie  sixth  section  of  the  act,  it  is  enactoil  that  the  land  shall 
be  sold  and  conveyed  to  such  person  as  will  agree  to  take 
the  same  for  the  shortest  term,  and  pay  the  tax,  interest, 
costs,  fees,  and  expenses ;  and  that  the  grantee,  by  virtue  of 
such  sale  and  conveyance,  shall  hold  and  enjoy  the  said  real 
estate  during  the  term  for  which  he  shall  have  purchased  the 
same,  for  his  own  use  and  benefit,  "  against  the  owner  or 
owners  thereof,  and  all  and  every  person  or  persons  claiming 
under  her,  him,  or  them,  until  the  said  term  shall  be  fully 
completed  and  ended." 

The  j)Ower  of  the  legislature,  by  virtue  of  its  sovereignty, 
to  make  the  tax  a  charge  upon  the  estate  of  all  parties  in- 
terested in  the  land,  and  to  make  the  tax  title  paramount  to 
all  other  and  prior  claims  and  encumbrances,  is  not  questioned. 
But  has  that  j)ower  been  exercised  in  the  act  under  considera- 
tion ?  Was  it  the  intention  of  the  legislature,  that  the  tax 
deed  should  operate  to  destroy  all  prior  interests  in  the  estate, 
vested  or  contingent,  executed  or  executory,  in  possession  or 
expectancy?  Is  the  title  under  the  deed  {)aramount  to  the 
"widow's  right  of  dower?  Or  will  the  sale  of  land,  to  pay 
the  tax  of  a  tenant  for  life,  extinguish  the  title  of  a  re- 
mainderman or  reversioner  ?  The  legislature,  I  think,  did 
not  contemplate  such  a  result.  There  is  nothing  in  the  lan- 
guage of  the  act  to  indicate  such  intention.  It  is  not  declared 
that  the  title  of  the  grantee  in  the  tox  deed  shall  be  para- 
mount to  all  other  interests,  nor  that  ho  shall  hold  it  against 
all  claims  and  encumbrances  whatever.  Nor  even  that  he 
shall  hold  it  during  the  term  for  which  he  purchases,  but 
tliat  he  shall  hold  it  against  the  owner  or  owners  thereof,  and 
all  persons  claiming  under  him  or  them,  until  said  term  shall 
be  ended.  Our  tax  laws  have  always  contemplated  that 
lands  shall  be  assessed  to  tlie  owner  or  owners  of  the  land  at 
the  time  of  the  assessment.  The  act  of  1854,  which  makes 
taxes  a  lien  upon  land  throughout  the  state,  directs  that  all 
lands  shall  be  assessed  in  the  name  of  the  owner.  The  second 


OCTOBER  TERM,  1863.  387 

Hopper  V.  Ex'rs  of  Malleson  et  al. 

section  of  the  act  in  question  declares,  that  any  assessment 
of  taxes  against  any  person  or  persons,  on  account  of  lands 
"  of  such  person  or  persons"  that  is  of  lands  of  which  he  or 
they  are  the  owner  or  owners,  shall  be  a  lien  upon  the  said 
lands ;  and  by  the  seventh  section  it  is  enacted,  that  notwith- 
standing any  mistake  in  the  name  or  names,  or  omission  to 
name  the  real  owner  or  owners  of  the  land  in  assessing  the 
tax,  the  assessment  shall  be  valid.  The  phrase  owner  or 
owners,  was  used  to  denote  the  owner  of  an  estate  in  posses- 
sion at  the  time  of  the  assessment,  and  not  a  prior  owner  or 
the  owner  of  an  estate  in  expectancy,  or  of  any  executory  or 
contingent  interest,  and  the  design  of  the  act  was  to  make 
the  interest  of  such  owner  only,  and  those  claiming  under 
him,  liable  for  the  tax  assessed.  Tiiat  this  is  the  true  inter- 
pretation of  the  act,  is  rendered  highly  probable  by  the  whole 
history  and  policy  of  our  legislation  on  the  subject.  The  tax 
law  requires  the  land  to  be  assessed  against  the  owner,  and 
in  his  name;  it  requires  a  personal  demand  of  the  tax,  and 
notice  of  the  time  of  the  meeting  of  the  commissioners  of  aj)- 
peal.  In  case;  of  a  default  in  payment,  after  proof  of  demand, 
it  authorizes  the  sale  of  the  delinquent's  goods,  or  the  arrest 
of  his  body.  Where  the  tax  is  assessed  upon  unimproved 
or  untenanted  lands,  the  wood,  timber,  or  herbage  might  be 
levied  upoti  by  distress  and  sale,  for  the  payment  of  the  tax. 
But  in  no  case,  by  the  general  tax  law  of  the  state,  was  land 
authorized  to  be  sold  for  the  payment  of  taxes.  Nor  was 
the  tax  a  lien  even,  upon  the  interest  or  estate  in  the  land  of 
the  delinquent  tax  payer.  If  there  was  no  tenant  upon  the 
land,  and  no  vendible  property  to  be  taken  by  way  of  redress, 
there  was  no  means  of  enforcing  the  payment  of  the  tax 
against  a  non-resident  land  owner.  That  legislation  should 
have  furnished  a  remedy  for  this  evil,  by  subjecting  the  land 
of  the  delinquent  tax  payer  to  the  lieu  of  the  tax,  and  to  be 
sold  for  its  satisfaction,  was  to  have  been  anticipated.  But 
it  was  not  to  have  been  anticipated,  that  the  legislature  de- 
signed utterly  to  abandon  its  long  approved  policy  of  protect- 
ing the  rights  of  the  tax  payer,  subjecting  even  his  personal 


388  CASES  IN  CHANCERY. 

Hopper  V.  Ex'rs  of  Malleson  et  al. 

property  to  sale,  only  upon  default  in  payment  after  notice 
and  demand  ;  and  to  subject  the  estate  of  the  owners  and 
bona  fide  encumbrancers  of  estates  in  the  lands  to  sale,  for 
the  default  of  another,  without  notice  of  the  existence  of  the 
tax,  or  an  oj)portunity  of  redemption. 

It  will  be  observed  that  the  law  applies  as  well  to  resident 
as  to  non-resident  tax  payers,  and  makes  no  provision  what- 
ever for  reden)ption,  cither  by  parties  having  estates  in  the 
land,  or  by  mortgagees.  If  the  law  was  designed  to  operate 
solely  upon  the  estate  of  the  delinquent  tax  payer,  there 
would  seem  to  be  no  necessity  for  hucli  jjrovision.  But  the 
j)rivilege  of  redemption  in  favor  of  mortgagees,  and  owners 
of  rights  in  land  sold  for  the  default  of  a  delinquent  tix  payer, 
is  so  obviously  proper,  and  its  omission  so  inconsistent  with 
ordinary  ideas  of  justice,  that  it  will  be  found  to  be  a  very 
general,  if  not  universal,  provision  of  statutes  designed  to 
affect  the  estate  of  others  than  the  delinquent.  Its  omission 
in  the  present  act,  is  entitled  to  some  weight  in  determining 
the  real  intention  of  the  legislature. 

If  the  tax  for  the  whole  value  of  the  land  were  assessed 
U[)on  the  land  as  an  entire  thing,  against  the  mortgagor,  or 
party  in  possession,  there  would  seem  to  be  more  propriety 
in  subjecting  the  entire  estate,  including  both  the  interest  of 
the  mortgagee  and  mortgagor,  to  the  operation  of  the  tax 
.sale.  But  under  our  system  of  taxation,  the  mortgagee  is 
taxed  individually  for  his  interest  in  the  land.  The  mort- 
gagor is  assessed  only  for  the  value  of  the  equity  of  redemp- 
tion. Thus  to  distinguish  between  the  estate  of  the  mort- 
gagor and  mortgagee,  and  yet  to  sacrifice  the  interest  of  the 
mortgagee  without  op|)ortunity  of  redemption,  for  the  default 
•of  the  mortgagor  in  j>aying  the  tax  a-^sessed  against  his  in- 
terest in  the  laud,  could  scarcely  have  been  within  the  con- 
templation of  the  legislature. 

It  cannot  be  denied  that  the  question  is  not  entirely  free 
from  difficulty,  and  that  it  has  given  rise  to  souie  conflict  of 
opinion.  But  if  it  be  admitted  that  the  foregoing  view  is 
Ajrroneous,  still  the  right  of  the  complaiiiaut  under  his  raort- 


OCTOBER  TERM,  1863.  389 

Walling  V.  Walling. 

gage  is  not  defeated  by  tlie  tax  sale,  because  the  mortgage 
was  not  given  by  tiiose  who  were  owners  of  the  land  at  the 
time  of  the  assessment,  or  against  whom  the  tax  was  assessed. 
The  mortgage  was  given  in  1847.  Malleson,  the  mortgagor, 
died  in  1848.  The  legal  estate  in  the  land  descended  to  liis 
lieirs.  Tlie  eqnitable  interest  was,  by  the  will  of  the  mort- 
gagor, disposed  of  for  the  benefit  of  certain  of  his  minor 
ehihlren'.  It  was  sold  for  taxes  assessed  in  1854—5-6  to 
"  the  estate  of  John  Malleso!)."  Admitting,  as  was  hekl  in 
8tate  V.  Collector  of  Jersey  City,  4  Znh.  108,  that  the  form 
of  the  assessment  was  sufficient  to  indicate  the  heirs  or  de- 
visees, without  naming  them,  it  is  clear  that  the  mortgage 
of  the  complainant  is  not  within  the  provision  of  the  statute. 
John  Malleson,  the  mortgagor,  was  not  the  owner  at  the  time 
of  the  assessment.  The  heirs  of  Mallest)n  were  then  the 
owners,  and  the  mortgagee  does  not  claim  under  them,  but 
by  title  {paramount  to  theirs. 

It  will  be  decreed  that  the  complainant's  mortgage  was  not 
extinguished  by  the  tax  sair,  l)ut  is  a  valid  and  subsisting 
enci]nd)rance  U])on  the  land  in  the  hands  of  the  purchaser  at 
that  sale.  As  the  claims  of  tlYfe  children  of  Malleson,  tiie 
mortgagor,  and  those  claitning  under  the  tax  sale,  are  not 
now  <lesigned  to  l)e  finally  disposed  of,  the  sur|)lus  money,  if 
any  there  be,  after  satisfying  the  comj)lainant's  demand,  will, 
at  the  final  decree,  be  directetl  to  be  brought  into  court  to 
abide  the  further  order  of  the  court. 
Cited  in  Dows  v.  Drew,  12  C.  E.  Gr.  444. 


Gersho:m  D.  Walling  r.s\  Elizabeth  Walling. 

1.  In  an  application  for  alimony  pendente  lite,  t!ie  ca?^e  must  be  taken 
most  Plrongly  against  the  petitioner.     Tlie  burthen  of  proof  is  upon  her. 

2.  All  the  fact''  upon  which  an  order  for  alimony  i-!  foiintled,  must  he 
proved.     The  order  must  not  rest  upon  mere  presumption  or  conjectnie. 

3.  Where  the  circumstances  upon  which  a  proper  adjustment  of  alimony 
materially  depends,  do  not  appear  in  the  petition,  a  reference  to  a  mastei 
will  be  ordered,  to  ascertain  the  real  facts  of  the  case. 


390  CASES  IN  CHANCERY. 

Walling  V.  Walling. 

4.  Under  tlie  special  circumstances  of  this  case,  the  question  was  disposed 
of  upon  the  facts  stated  in  the  petition,  without  a  reference. 


Bedle,  for  petitioner. 

H.  S.  Lllile,  for  complainant,  contra. 

The  Chancellor.  The  complainant  filed  a  bill  against 
his  wife  for  divorce,  on  the  gronnd  of  desertion.  The  wife, 
having  answered,  asks  an  allowance  for  alimony  pendente 
lite,  and  f()r  counsel  fee  and  expenses.  Tiie  application  is 
submitted  without  argument,  upon  the  facts  contained  in  the 
petition. 

The  materials  for  an  intelligent  and  satisfactory  disposition 
of  the  question  are  not  before  the  court.  All  the  material 
facts  that  are  disclosed  are,  that  the  husband  and  wife  have 
been  living  separate  for  some  years.  The  wife  (with  two 
daughters,  one  seventeen  and  the  other  fifteen  years  of  age) 
residing  with  her  father,  and  mainly  supporting  herself  by 
her  own  industry.  The  husband  possessed  of  real  and  per- 
sonal estate  valued  at  $3500.  Whether  the  daughters  are 
accustomed  to  labor,  and  able  to  maintain  themselves  by  their 
industry  ;  whether  the  projierty  of  the  husband  is  productive 
or  unproductive  ;  whether  he  is  engaged  in  business,  or  has 
other  sources  of  income,  does  not  appear.  Upon  these  cir- 
cumstances the  proper  adjustment  of  alimony  would  mate- 
rially depend. 

The  case  must  be  taken  most  strongly  against  the  peti- 
tioner. The  burthen  of  proof  is  upon  her.  All  the  facts 
upon  which  the  order  for  alimony  is  founded  must  be  proved. 
The  order  must  not  rest  upon  mere  presumption  or  conjecture. 

The  case  then  is,  that  the  parties  are  in  humble  life,  the 
wife  accustomed  to  labor,  and  both  she  and  her  daughters 
able  to  provide  for  their  own  maintenance.  The  husban*! 
possessed  of  real  and  personal  property  to  the  value  of  $3500, 
consisting  probably  of  a  home  and  furniture,  totally  unpro- 
ductive, or  if  the  whole  amount  be  ordinarily  produc- 
tive, furnishing  an  income  not  exceeding  $200  per  annum, 


OCTOBER  TERM,  1863.  391 

Marsli  V.  Marsh. 

with  no  trade  or  business,  and  no  other  source  of  income,  or 
means  of  support.  Under  sucli  circumstances,  justice  requires 
that  a  very  moderate  aUovvance  be  made  for  alimony.  An 
allowance  which,  under  otiier  circumstances,  would  be  very 
small,  would  prove  ruinous  to  the  husband.  If  the  wife  was 
in  feeble  health,  or  otherwise  incapable  of  supporting  herself, 
if  either  of  her  daughters  were  dependent  ujion  her  for  sup- 
port or  education,  if  the  husband's  property  was  productive, 
if  lie  was  engaged  in  profitable  business,  or  possessed  of  any 
other  source  of  income,  the  case  would  be  totally  altered.  It 
is,  obviously,  a  |)roj)er  case  for  a  reference  to  a  master,  to 
ascertain  the  real  facts  of  the  case. 

But  as  the  parties  desire  a  decision  of  the  court  without  the 
expense  of  a  reference,  and  as  the  legal  presumptions  upon 
which  the  decision  must  rest,  are  j)robaI)ly  in  accordance  with 
the  real  facts  of  the  case,  the  question  is  disposed  of  upon  the 
facts  stated  in  the  petition,  without  a  reference. 

An  allowance  will  be  made  of  two  dollars  per  week  for 
alimony,  and  thirty  dollars  for  counsel  fee  and  expenses.  The 
alimony  to  commence  on  the  fourteenth  of  August,  1863,  the 
day  of  filing  the  petition,  and  to  be  paid  quarterly. 


Stewart  C.  Marsh  vs.  Eliza  Ann  Marsh. 

1.  a  general  allegation  in  a  till  for  divorce,  that  the  defendant  within  a 
epecified  time  lias  committed  adultery,  is  insufBcient.  The  party  with 
whom  the  crime  is  believed  to  have  been  committed,  must  be  named  ;  or 
if  unknown,  an  averment  to  tliat  effect  is  necessary. 

2.  The  charge  mu^t  be  so  full  and  specific  that  the  party  charged  may 
know  wnat  he  is  called  on  to  answer.  It  should  state  the  time  when, 
the  place  where,  and  if  known,  the  person  with  whom  the  offence  was 
committed.  It  is  not  necessary  to  state  the  day,  but  the  month  and  year 
should  be  stated. 

3.  An  averment  that  the  statements  contained  in  the  bill  are  made  upon 
information  and  belief,  conslitutcs  no  ground  of  demurrer. 

4.  A  bill  praying  a  discovery  from  the  defendant,  whetlier  since  her 
marriage  she  has  not  committed  adultery  with  any  person  whatever,  and 


392  CASES  IN  CHANCERY. 

Marsli  V.  Marsh. 

with  wliom,  and  at  what  time  and  place,  and  under  what  circniiTLstances,  ia 
demurrable.  Tlie  rule  is,  that  the  defendant  is  not  bound  to  accuse  himself 
of  a  crime,  or  to  furnish  any  evidence  whatever  which  shall  lead  to  an  ac- 
cusation of  that  nature.  And  the  objection  lies  to  a  particular  interroga- 
tory, though  the  bill  be  in  other  respects  unexceptionable. 

5.  Under  a  general  demurrer  for  want  of  equity,  no  objection  for  want 
of  form  can  properly  be  raised.  A  demurrer  must  express  the  several 
causes  of  demurrer. 

6.  Demurrer  overruled,  with  leave  to  amend  by  .stating  the  grounds  of 
demurrer  within  twenty  days,  unless  the  comi)lainant  within  that  time, 
bIkiII  amend  his  bill  in  the  particulars  objected  to. 


T.  Ranyon,  for  the  defendant,  \u  support  of  tlie  demurrer. 

I.  Tlie  bill  does  not  charge  adultery  except  on  information 
and  belief. 

Our  "  act  concerninoj  divorces,"  provides  that  the  petition 
shall  plainli/  luu]  ftcllt/  state  the  cause  or  causes  of  the  applica- 
tion for  divorce,  &c. 

The  bill  (when  the  proceeding  is  by  bill)  should  be  equally 
explicit  in  statement. 

No  affidavit  of  the  truth  of  the  allegations  is  required  to  be 
made  by  complainant ;  there  is,  therefore,  no  excuse  whatever 
for  the  vague  statement  u[)on  information  and  belief.  Under 
such  circumstatices,  it  is  surely  not  requiring  too  much  of  the 
complainant,  to  insist  that  he  state  poHiiivclij  the  fact  of  the 
alleged  adultery. 

II.  There  is  no  attempt  at  particularity  in  this  bill. 

It  states  that  the  complainant  is  informed  ami  believes,  and 
charges  the  truth  to  be,  that  the  defendant  has  committe<l 
adultery  with  divers  persons  at  different  plnce.'^  in  New  Jersey 
since  her  marriage  to  the  complainant,  and  especially  that  in 
all  theyears,  1858,  1859,  1860,  1861,  1802,  1863,  she  com- 
mitted adultery  with  J.  II.  G.  Hawes,  at  Newark,  but  on 
what  particular  day  complainant  is  ignorant. 

Here  is  a  period  of  more  than  five  years  through  which 
adultery  is  charged  merely  on  information  and  belief,  with- 
out a  single  specification  of  time,  place,  or  circumstance. 
Shelford  on  Mar.  &  D.  399. 

So  of  the  statement  as  to    her    living    in    adultery  with 


OCTOBER  TERM,  18G3.  393 

Marsli  V.  Marsh. 

Hawes.  That  is  merely  on  infi)rmatlon  and  belief,  without 
specification  of  time  "  for  a  long  time  past,"  and  witliout  any 
circumstances. 

III.  The  prayer  of  the  bill  requires  the  def(Midant  to  dis- 
cover whether,  "  since  her  marriage  to  complainant  she  has 
not  coramitteil  adultery  with  someone  or  other,  with  the  par- 
ticulars." 

No  such  answer  can  i)e  reqtiired  of  the  defendant. 

IV.  If  this  bill  can  be  sustained,  then  a  sim[)le  statement 
that  complainant  is  informed  and  believes  that  since  his  mar- 
riage to  defendant  she  lias  committed  adultery,  and  praying 
a  discovery,  would  be  sufficient  in  a  bill  for  divorce. 

The  adtlitional  statement,  that  the  complainant  is  informed 
and  believes  that  in  all  of  more  than  five  years  past,  defend- 
ant has  committed  adultery  with  a  certain  person  at  a  certain 
designated  city,  would  not  redeem  the  l)ill  from  the  objection. 

For  if  that  allegation  were  denied  by  the  answer,  and 
incapable  of  proof,  the  complainant,  if  the  bill  be  held  suffi- 
cient, would  be  at  liberty  to  proceed  to  proof  under  the 
general  charge  containing  no  particulars  or  specifications 
whatever. 

V.  The  affidavit  to  the  bill  is  not  in  compliance  with  the 
law. 

The  statute  requires  the  conijdainant's  oath  that  "  his 
complaint"  is  not  made  by  any  collusion,  &g. 

The  affidavit  in  this  case  is  that  the  "  bill  of  complaint  "  is 
not  made  by  any  collusion,  &c. 

The  object  of  the  statute  is  to  guard  against  collusion  in 
prosecuting  suits  for  divorce,  and  it  is  not  satisfied  by  oath 
that  the  bill  is  not  made  (whatever  that  means)  by  collusion. 

Hanncy,  for  the  complainant,  contra. 

The  bill  states  the  cause  of  the  ajri^lication  for  divorce  to 
be  adultery,  committed  by  the  defendant  with  John  II.  G. 
Hawes,  at  the  city  of  Newark,  on  diffi^rent  days  in  each  and 
all  of  the  years,  1858,  1859,  1860,  1861,  1862,  and  1863: 
and  that  the  defendant,  at  the  time  of  filing  of  the  bill  was 


394  CASES  IN  CHANCERY. 

Marsh  V,  Marsh. 

living,  and  for  a  long  time  previous  had  been  living,  in  adul- 
tery with  said  Hawes  at  the  city  of  Newarlv 

The  coniphiinant  makes  these  charges  upon  "  information 
and  belief."  See  precedents  in  2  Barb.  Ch.  Pr.  680;  8  Hof- 
man^s  Ch.  Pr.  (appendix)  373. 

As  to  the  want  of  tiarticnlaritv. 

Ail  that  is  required  in  bills  for  divorce  is,  that  the  offence 
charged  should  be  stated  with  such  reasonable  certainty  as 
to  time,  place,  and  person,  that  the  defendant  may  be  able  to 
meet  it.  The  practice  in  the  English  Ecclesiastical  Courts 
of  setting  out  all  the  circumstances  of  the  case  is  not  adhered 
to,  and  is  not  required  here. 

It  is  sufficient  to  charge  that  the  offence  was  committed 
with  one  or  more  ))ersons  unknown  to  the  complainant.  Ge?'- 
viond  v.  Gcnnond,  6  Johns.  Cii.  R.  347,  349.  See  also 
Bohd  V.  Bukel,  3  Edw.  Ch.  R.  376;  Ilorrell  v.  Morrell,  ^ 
Barb.  S.  C.  R.  236. 

Particular  evidence  may  be  given  under  a  general  charge 
of  lewdness,  dark  v.  Per  lam,  2  Atk.  333,  337  ;  Watlcyns 
V.   Walkyns,  Ibid.  96. 

If  the  acts  of  adultery  charged  are  sufficiently  circumstan- 
tial, it  is  not  necessary  to  sjiecify  time  and  place.  Moore  v. 
Moore,  3  3Ioore  84;  Chittys  Eq.  Pig.,  ^^  Husband  and 
Wife"  1,  6. 

The  affidavit  annexed  to  the  bill  is  in  the  same  form  given 
in  Potts'  Ch.  Prec.  185. 

The  Chancellor.  The  practice  in  the  English  Ecclesias- 
tical Courts  on  a  charge  of  adultery,  either  in  the  libel  or 
in  the  responsive  allegation,  is  to  set  out  circumstantially  all 
the  principal  facts  of  the  case  as  proposed  to  be  proved.  The 
libel  states,  also,  the  various  acts  of  adultery  intended  to  be 
relied  on;  when,  where,  and  with  whom  committed.  Dillon 
V.  PVlon,  3  Ciuieis  86  ;  Shelford  on  Mar.  &  D.  398. 

Tlie  same  degree  of  particularity  has  not  been  adopted  in 
bills. for  divorce  in  this  country.  But  it  is  settled  that  a 
general  allegation  that  the  defendant,  within  a  specified  time, 


OCTOBER  TERM,  1863.  395 

Marsh  v.  Marsh. 

lias  committed  adultery,  is  insufficient.  The  party  witii  wiioni 
the  crime  is  believed  to  have  been  committed  must  be  named, 
or,  if  uid\;n()\vn,  an  averment  to  that  efFfCt  is  necessary. 
Church  V.  Church,  3  31<iss.  157;  Choate  v.  Choatc,  Ibid. 
391  ;    Germond  v.  Gennond,  6  Johns.  Ch.  R.  347. 

Every  |)rinei[>le  of  good  pleading  requires  that  the  charge 
should  be  so  full  and  speeiHc  that  the  defendant  may  know 
the  charge  she  is  called  on  to  answer.  It  should  state  the 
time  when,  the  place  where,  and  if  known,  the  person  with 
whom  the  offence  was  committed.  It  is  not  necessary  as  in 
criminal  cases,  to  state  the  day,  but  the  mouth  and  year  should 
be  stated. 

The  libel  charging  adultery  ought  to  set  forth  some  certain 
and  definite  time,  viz.  the  year  and  month  wherein  the  crime 
of  adultery  is  alleged  to  be  committed,  for  without  such  spe- 
cification of  time,  the  libel  is  not  valid  in  law,  and  the  court 
will  not  proceed  in  the  cause,  even  though  the  party  accused 
should  not  oppose  the  ]M'oceeding.  Af//iffcs  Parergon  50; 
SheJford  on  Mar.  &  D.  399. 

The  true  rule  in  charging  adultery  as  well  as  the  reason 
upon  which  it  rests,  is  stated  with  clearness  by  Chancel- 
lor Walworth  in  Wood  v.  Wood,  2  Paige  113:  "The  only 
safe  and  prudent  course  is  to  require  the  charge,  whether  of 
crimination  or  recrimination,  to  be  stated  in  the  pleadings 
and  in  the  issues,  in  such  a  manner  that  the  adverse  party 
may  be  prepared  to  meet  it  on  the  trial.  If  the  persons  with 
whom  the  adultery  was  committed  are  known,  they  must  be 
named  in  the  defendant's  answer,  and  the  adultery  must  be 
charged  with  reasonable  certainty  as  to  time  and  place.  If 
they  are  unknown,  the  fact  should  be  stated  in  the  answer 
and  in  the  issue,  and  the  time,  place,  and  circumstances  under 
which  the  adultery  was  committed,  should  be  set  forth. 
Neither  party  has  a  right  to  make  such  a  charge  against  the 
other  on  mere  suspicion,  relying  on  being  able  to  fish  up  tes- 
timony before  the  trial  to  support  the  allegation.  When  in- 
formation sufficient  to  justify  the  charge  is  given,  the  party 


CASES  IN  CHANCERY. 


Marsh  v.  Marsh. 


will  be  possessed  of  the  requisite  facts  to  put  the  charge  in  a 
distinct  and  tangible  form  on  the  record." 

These  ])rinci[)Ies  and  reasons  apply  as  well  to  the  bill 
charging 'adultery,  as  to  the  answer  setting  it  up  by  way  of 
recrimination.  The  same  principle  is  recognized  in  Clutch  v. 
Clutch,  Saxton,  474  ;  and  in  Burr  v.  Burr,  2  Edw.  Ch.  R. 
448. 

The  bill  in  this  case  charges  that  the  defendant,  since  her 
marriage  with  the  complainant,  hath  committed  adultery  at 
divers  places  in  the  state  of  New  Jersey,  with  divers  persons, 
whose  names  are  unknown  to  the  complainant.  The  parties 
were  married  on  the  15th  of  September,  1835.  The  bill  was 
filed  on  the  23d  of  March,  1863.  The  allegation  is  tanta- 
mount to  a  general  charge  that  within  twenty-eight  years  be- 
fore filing  the  bill,  the  defendant  hath  been  guilty  of  adultery. 
The  bill  further  charges  that  the  defendant,  on  different  days 
in  the  years  1858-59-GO-G 1-62-63,  but  upon  what  particu- 
lar days  the  defendant  is  ignorant,  at  the  city  ot  Newark, 
committed  adultery  with  one  John  H.  G.  Hawes,  and  that 
the  defendant  is  now,  and  for  a  long  time  past  has  been,  liv- 
ing in  adultery  with  the  said  John  II.  G.  Hawes,  at  the  city 
of  Newark  aforesaid.  If  any  [)art  of  this  charge  [)ossesses 
the  requisite  degree  of  certainty,  it  is  the  last  clause,  which 
charges  that  the  defendant  is  now  living  in  adultery  at  New- 
ark, with  Plawes,  and  it  would  seem  that  the  d(;fendant's 
evidence  must  be  confined  to  the  single  point,  that  at  or  about 
the  time  of  filing  the  bill,  the  defendant  was  guilty  of  the 
crime  specified.  But  what  is  meant  by  a  long  time  j)ast?and 
how  is  an  issue  to  be  framed  upon  the  charge?  Suppose  the 
defendant  denies  the  charge,  and  an  issue  at  law  is  directed. 
Is  the  jury  to  inquire  whether  the  defendant,  within  a  long 
time  past,  has  been  guilty  of  adultery? 

It  is  objected  that  the  charge  of  adultery  is  not  made  posi- 
tively, but  upon  inf)rmation  and  belief  only.  The  form  is 
derived  from  the  precedents  in  the  Court  of  Chancery  in  New 
York.  The  averment  that  the  statement  is  made  u])on  in- 
formation  and   belief  is   there   appropriate,  because,  by   the 


OCTOBER  TERM,  1863.  397 

Mar>h  v.  Marsh. 

rules  of  that  court,  tiie  bill  is  required  to  be  verified  by  oath. 
And  in  bills  which  are  to  be  thus  verified,  as  well  as  in  an- 
swers and  petitions,  the  several  matters  stated,  charge(l, 
averred,  admitted,  or  denied,  are  required  to  be  stated  posi- 
tively, or  uj)on  information  or  belief  only,  according  to  the 
fact.  2  Barb.  Ch.  Pr.  680 ;  3  Hoffman's  Ch.  Pr.  {appendix) 
371  ;  Rules  of  1837,^9.  32,  Rules' 17,  18. 

AVhere  the  bill  is  not  verified  by  oath,  the  statements  con- 
tained in  it  are  not  understood  to  be  within  the  knowledge 
of  the  party.  It  is  not  requisite  that  they  should  be  so,  any 
more  than  in  the  case  of  a  declaration  at  law.  The  aver- 
ment, therefore,  that  the  statements  are  made  upon  informa- 
tion and  belief,  though  unnecessary  and  inappropriate,  con- 
stitutes no  ground  for  demurrer. 

The  bill  prays  a  discovery  from  the  defendant,  whether, 
since  her  marriage,  she  hath  not  committed  adultery  with 
any  person  whatever,  and  with  whom,  and  at  what  time  and 
place,  and  under  what  circumstances.  This  constitutes  a 
valid  ground  of  demurrer.  The  rule  is,  that  a  defendant  is 
not  bound  to  accuse  himself  of  a  crime,  or  to  furnish  any 
evidence  whatever  which  shall  lead  to  any  accusation  of  that 
nature.  And  the  objection  lies  to  a  particular  interrogatory, 
though  the  bill  be  in  other  respects  unexceptionable.  31it- 
ford's  Eq.  PL  194 ;  Stores  Eg.  PL,  §  522,  524,  575. 

I  have  thus  expressed  an  opinion  upon  the  several  points 
discussed  in  the  briefs  of  counsel.  But  the  demurrer,  on 
examination,  proves  to  be  merely  a  general  demurrer  for 
want  of  equity,  under  which  no  objection  for  want  of  form 
can  properly  be  raised.  A  demurrer  must  express  the  several 
causes  of  demurrer.  Ston/s  Eq.  PL,  §  443;  Mitford's  Eq. 
PL  213. 

This  objection  was  not  raised  by  counsel,  nor  is  there  any 
intimation,  in  the  briefs  submitted,  that  it  has  been  waived. 
The  demurrer  cannot  be  allowed  as  it  now  stands,  because  ic 
is  clear  tliat  the  bill  is  not  defective  for  want  of  equity.  Leave 
may  be  given  to  amend  the  demurrer.  Glegg  v.  Legh,  4 
Madd.  208;  Thorpe  v.  Macauky,  5  Madd.  218. 

Vol.  I.  2  b 


398  CASES  IN  CHANCERY. 

Keeiie  et  al,  v,  Munn  et  al. 

In  such  case  leave  would  be  given,  if  desired,  to  the  com- 
plainant to  amend  also,  which  would  avoid  the  necessity  of 
amending  the  demurrer.  The  objections  raised  are,  never- 
theless, too  serious  to  justify  the  court  in  requiring  an  answer 
to  the  bill  in  its  present  shape.  As  the  most  effectual  mode 
of  attaining  the  ends  of  justice  without  unnecessary  delay, 
the  demurrer  is  overruled,  with  leave  to  amend  the  demurrer 
within  twenty  days  from  the  date  of  the  order,  unless  the 
complainant,  within  that  time,  shall  amend  his  bill  in  the 
particulars  objected  to,  for  which  purpose  leave  is  granted. 

The  order  is  made  without  costs  to  either  party  as  against 
the  other. 

Cited  in  3IUls  v.  ^lills,  3  C.  E.  Gr.  445 ;  3fmer  v.  Miller,  5  C.  E.  Gr. 
217 ;  Reid  v.  Beid,  6  C.  E.  Gr.  333 ;  Goodwin  v.  Goodwin,  8  C.  E.  Gr. 
210;  Miller  v.  Jamison,  9  C.  E.  Gr.  44;  Black  v.  Black,  11  C.  E.  Gr. 
432 ;  Black  v.  Black,  12  C.  E.  Gr.  665. 


George  A.  Keene  and  others  vs.  Polly  JVIuxn  and  others. 

1.  At  common  law  personal  estate  is  the  primary  fnnd  for  the  payment 
of  debts,  and  the  heir-at-law  may  call  upon  the  executor  to  exonerate  the 
land  by  discharging  the  mortgage  debt  out  of  tiie  personal  estate.  The 
devisee  stands  in  the  same  position  as  the  heir,  and  is  entitled  to  the  same 
equity. 

2.  But  the  mortgagee,  or  alienee,  of  the  heir  or  devisee,  has  ro  such 
equity.  The  principle  is  adopted  in  favor  of  the  heir  or  devisee  alone,  and 
not  in  favor  of  his  alienee. 

3.  Where  a  mortgagor  has  from  time  to  time  aliened  certain  portions  of 
the  mortgaged  premises,  that  portion  not  aliened  will  be  first  sold  to  satisfy 
a  decree  of  foreclosure  and  sale  ;  if  such  sale  do  not  bring  sufficient  to  satisfy 
the  decree,  then  the  parcel  last  aliened  will  be  sold,  and  so  on  in  the  re- 
rerse  order  of  the  conveyances,  until  the  decree  is  satisfied. 


Hanney,  for  complainants. 
Taylor,  for  defendants,  Ira  and  James  Peck. 
Bradley,  for  defendant,  Aaron  Peck. 
Weeks,  for  defendant,  B.  W.  Benson. 


OCTOBER  TERM,  1863.  399 

Keene  et  al.  v.  Munn  et  al. 

The  Chancellor.  The  bill  is  filed  to  foreclose  a  mort- 
gage given  by  Isaac  Munn  and  Polly,  his  wife,  for  $500,  on 
two  tracts  of  land  in  Orantre.  The  morto-ag-e  bears  date  on 
the  eleventh  of  October,  1821,  and  was  given  to  Aaron  L. 
Burnet,  and  by  him  assigned  to  the  complainants.  On  the 
thirtieth  of  April,  1834,  the  mortgagor  and  wife  conveyed 
one  of  the  tracts  to  William  Peck,  by  whom  it  was  subse- 
quently conveyed  to  Ira  and  James  Peck,  two  of  the  defend- 
ants. This  lot  being  first  aliened  by  the  mortgagor,  it  is 
admitted  that  the  mortgage  debt  is  to  be  charged  primarily 
on  the  other  tract  known  as  the  homestead  lot.  On  the  fourth 
of  November,  1853,  the  mortgagor  and  wife  conveyed  part 
of  the  homestead  tract  to  James  H.  Simpson.  Simpson  gave- 
a  mortgage  of  the  same  date  with  the  deed,  to  his  grantor  for 
^500,  part  of  the  purchase  money.  That  mortgage  is  now 
held  by  Polly  Munn,  the  widow  and  surviving  executor  of 
Isaac  Munn. 

Isaac  Munn,  the  mortgagor,  died  on  the  fifteenth  of  Au- 
gust, 1856.  By  his  will,  duly  executed  to  pass  real  estate, 
he  devised  to  his  wife,  Polly  Munn,  the  use  of  all  his  lands 
during  her  widowhood  ;  and  to  his  son,  John  O.  Munn,  his 
homestead  house  and  lot,  together  with  a  lot  of  mountain 
woodland,  subject  to  the  payment  of  sundry  legacies  to  his 
other  children,  to  be  paid  in  one  year  after  the  death  of  his 
wife. 

On  the  eleventh  of  August,  1860,  John  O.  Munn  gave  to 
Aaron  Peck  a  mortgage  on  liis  interest  in  the  real  estate  so 
devised  to  him  by  his  father,  the  mortgagor,  for  ^300.  On 
the  thirteenth  of  December,  1861,  he  conveyed  the  equity  of 
redemption  in  the  premises  to  Benjamin  W.  Benson.  Benson, 
by  his  answer,  claims  that  in  equity  the  amount  of  the  ^500 
mortgage,  given  by  Simpson  to  Isaac  Muun,  and  now  in  the 
hands  of  his  executrix,  should  be  applied  in  exoneration  of 
the  land  devised  to  John  O.  Munn  by  his  father,  the  mort- 
gagor, and  that  to  this  end,  that  part  of  the  homestead  lot 
sold  and  conveyed  by  the  mortgagor  to  Simpson,  should  be 
first  sold  to  pay  and  satisfy  the  mortgage  of  the  complainant. 


400  CASES  IN  CHANCERY. 


Keene  et  al.  v.  Munn  et  al 


By  his  answer  he  alleges  that  he  purchased  subject  to  the 
mortgage  to  Aaron  Peck,  and  to  the  legacies  contained  in 
the  will  of  Isaac  Munn,  deceased,  and  subject  to  no  other 
encumbrance;  and  that  at  the  time  of  the  purchase  he  was 
informed  by  the  vendor  of  the  existence  of  the  complainants' 
mortgage,  but  that  the  mortgagor  in  his  lifetime  had  appro- 
priated the  mortgage  given  by  Simpson  to  him,  to  the  pay- 
ment and  discharge  of  the  complainants'  mortgage  ;  and  that 
the  executors  of  the  said  Isaac  Munn  then  held  the  Simpson 
mortgage  for  that  purpose,  and  would  so  apply  it. 

There  is  no  evidence  in  support  of  this  allegation  of  the 
defendant's  answer.  The  only  question  in  the  case  is,  whether 
the  parties  claiming  title  under  John  O.  Munn,  the  devisee 
of  the  mortgagor,  are  entitled  to  have  the  complainants' 
mortgage  paid  out  of  the  personal  estate  of  the  mortgagor, 
in  exoneration  of  the  land  devised. 

At  common  law,  personal  estate  is  tlie  primary  fund  for 
the  payment  of  debts,  and  the  heir-at-law  may  call  upon  the 
executor  to  exonerate  the  land  by  discharging  the  mortgage 
debt  out  of  the  personal  estate,  upon  the  ground  that  the 
personal  estate  had  the  benefit  of  the  money  for  which  the 
mortgage  was  given.  The  devisee  stands  in  the  same  position 
as  the  heir,  and  is  entitled  to  the  same  equity.  But  the  mort- 
gagee, or  alienee,  of  the  heir  or  devisee  has  no  such  equity. 
The  principle  is  adopted  in  favor  of  the  heir  or  devisee  alone, 
and  not  in  favor  of  his  alienee.  Bacon's  Ahr.,  Mortgage  E ; 
Haven  v.  Foster,  9  Pich.  112  ;  Scott  v.  Becchcr,  5  Haddock 
96  ;  Camherland  v.  Codrington,  3  Johns.  Ch.  R.  229 ;  Ham- 
ilton V.  Worley,  2  Vesey  62 ;  1   Waslih.  on  Real  Prop.  566. 

The  common  law  rule  in  favor  of  the  heir  or  devisee,  is  re- 
cognized and  altered  by  a  provision  of  the  revised  statutes  of 
the  state  of  New  York,  which  makes  the  land  devised  sub- 
ject to  a  mortgage,  the  primary  fund  for  the  satisfaction  of 
the  mortgage  debt.  1  Rev.  Stat.  749,  §  4 ;  Wahh'on  v. 
Waldron,A  Bradf.  R.  114;  Taylor  v.  Wendel,  /6/c?.  324; 
3Iosely  V.  Marshall,  27  Barb.  42 ;  Rapalye  v.  Rnpalye,  Ibid. 
610. 


OCTOBER  TERM,  1863.  401 

Wyckoff  et  al.  v.  Wyckoff  et  al. 

The  complainants  are  entitled  to  a  decree  for  foreclosure 
and  sale  of  the  mortgaged  premises  in  the  order  and  priority 
above  indicated.  That  part  of  the  mortgaged  premises  not 
aliened  by  the  mortgagor  in  his  lifetime,  must  be  first  sold. 


Cathaeixe  S.  Wyckoff  and  others  vs.  John  M.  Wyckoff 

and  others. 

1.  The  mere  proof  of  the  loss  or  destruction  of  an  instrument  does  not, 
as  a  matter  of  course,  let  in  the  party  to  give  secondary  evidence  of  its  con- 
tents. He  who  voluntarily,  without  mistake  or  accident,  destroys  primary 
evidence,  thereby  deprives  himself  of  the  production  and  use  of  secondary 
evidence. 

2.  If  the  destruction  of  an  instrument  was  accidental,  or  if  it  occurred 
without  the  agency  or  assent  of  the  party  offering  it,  secondary  evidence  is 
admissible.  But  if  it  was  voluntarily  destroyed  by  the  party,  secondary 
evidence  of  its  contents  will  not  be  admitted,  until  it  be  shown  that  it  was 
done  under  a  mistake,  and  until  every  inference  of  a  fraudulent  design  is 
repelled. 

3.  Where  an  adequate  motive  for  the  destruction  of  a  will  is  assigned 
by  the  party  seelving  to  establish  it,  and  clearly  confirmed  by  the  evidence 
the  court  will  not,  upon  mere  conjecture,  impute  an  inadequate  and  dis- 
honest motive. 

4.  The  true  rule  is,  that  the  will  may  be  established  upon  satisfactory 
proof  of  its  destruction,  and  of  its  contents  or  substance.  Whether  the 
proof  be  by  one  witness,  or  by  many,  it  must  be  clear,  satisfactory,  and 
convincing. 

5.  The  cost  of  establishing  the  will,  and  of  taking  out  letters  of  admin- 
istration, ordered  to  be  paid  out  of  the  estate,  the  burden  falling  upon  the 
residuary  legatee,  by  whose  act  the  costs  were  occasioned. 


Leupp,  for  complainants. 

J.  N.   Voorhees,  for  defendants. 

The  Chancellor.     The  bill  is  filed  by  certain  legatees 
under  the  will  of  Lany  Vandoren,  deceased,  to  establish  the 


402  CASES  IN  CHANCERY. 

Wyckoff  et  al.  v.  Wyckoff  et  al. 

"will,  to  the  end   that    letters    testamentary    may  be    issued 
thereon. 

The  factum  of  the  will,  the  competency  of  the  testatrix,  and 
tlie  destruction  of  the  instrument  after  the  death  of  the  testa- 
trix, are  clearly  established.  There  is  no  suggestion  that  there 
was  any  revocation  of  the  will.  The  only  question  is,  whether 
there  is  sufficient  proof  of  the  contents  of  the  instrument. 
They  are  proved  by  the  testimony  of  one  witness  alone,  and 
that  witness  interested  in  the  result.  He  is  the  residuary 
legatee  under  the  will,  and  not  only  so,  but  the  will  was  vol- 
untarily destroyed  by  him.  Upon  this  statement  of  facts, 
three  distinct  questions  are  presented  for  consideration. 

1.  Is  the  witness  competent  ? 

2.  Is  he  credible  ? 

3.  Can  the  will  be  established  upon  the  testimony  of  one 
"witness  alone  as  to  its  contents  ? 

The  interest  of  the  witness  in  the  event  does  not  disqualify 
him.  But  the  more  important  question  is,  whether  a  party 
who  has  voluntarily  destroyed  a  will  or  other  instrument,  will 
be  permitted  to  prove  its  contents  by  secondary  evidence,  either 
by  his  own  testimony,  or  by  the  testimony  of  others.  In  con- 
sidering this  question,  it  is  proper  to  regard  the  evidence  as 
offered  by  the  witness  in  his  own  behalf.  For  although  the 
bill  is  filed  in  the  name  of  other  legatees,  it  is  not  denied 
that  it  is  filed  by  the  procurement  of  the  residuary  legatee, 
and  that  he  is  the  principal  legatee  under  the  will. 

The  mere  proof  of  the  loss  or  destruction  of  an  instrument 
does  not,  as  a  matter  of  course,  let  in  the  party  to  give  sec- 
ondary evidence  of  its  contents.  "  He  who  voluntarily, 
without  mistake  or  accident,  destroys  primary  evidence, 
thereby  deprives  himself  of  the  production  and  use  of  sec- 
ondary evidence."     Broadwell  v.  Stiles,  3  Haht.  R.  58. 

If  the  destruction  was  accidental,  or  if  it  occurred  with- 
out the  agency  or  assent  of  the  party  offering  it,  secondary 
evidence  is  admissible.     But  if  the  instrument  was  volun- 


OCTOBER  TERM,  1863.  403 

WyckofFet  ^.  v.  Wyckoff  et  al. 

tarily  destroyed  by  the  party,  secondary  evidence  of  its  con- 
tents will  not  be  admitted,  until  it  be  shown  that  it  was  done 
under  a  mistake,  and  until  every  inference  of  a  fraudulent 
design  is  repelled.  Riggs  v.  Tayloe,  9  Wheaton  483  ;  Ren- 
ner  v.  Bank  of  Columbia,  Ibid.  581  ;  Blade  v.  Noland,  12 
Wend.  173;  Cow.  &  Hlirs  notes  to  1  Phil.  Ev.  A52,note. 
861,  p.  1214. 

The  circumstances  under  which  the  will  was  destroyed  are 
clearly  proved.  The  property  of  the  testatrix  was  derived 
from  her  father,  Jacob  Vandoren,  who  died  in  1811.  By  his 
will  he  bequeathed  a  share  of  the  residue  of  his  estate  to  his 
daughter  Lenah  (the  testatrix).  And  if  she  died  without 
issue,  he  further  bequeathed  such  part  of  her  share  as  re- 
mained unexpended,  to  his  surviving  children.  Her  share 
had  been  paid  over  to  her  by  the  executors.  On  the  1st  of 
April,  1824,  she  placed  in  the  hands  of  John  M.  Wyckoflf, 
as  her  agent  and  attorney,  promissory  notes  amounting  to 
$1250.  On  the  20th  of  January,  1853,  she  executed  the 
will  now  sought  to  be  established,  and  placed  it  in  the  hands 
of  her  attorney  and  agent.  By  the  will  she  appointed 
Wyckoff  the  sole  executor,  and  made  him  the  residuary  lega- 
tee. He  retained  possession  of  the  will,  and  continued  to 
act  as  the  agent  of  the  testatrix  to  the  time  of  her  death. 
She  died  in  May,  1859,  without  issue.  Immediately  upon 
her  death,  this  property  was  claimed  by  the  executors  of 
Jacob  Vandoren,  as  a  part  of  his  estate,  being  bequeathed 
over  to  his  other  children  in  the  event  of  his  daughter's 
death  without  issue.  If  the  witness  himself  read  the  will, 
he  would  naturally  have  concluded  that  such  was  its  true 
meaning.  The  surrogate  whom  he  consulted,  so  advised. 
Eminent  counsel,  ujion  whose  judgment  he  would  naturally 
rely,  entertained  and  expressed  that  opinion.  The  true  con- 
ctruction  of  the  will  was  indeed  a  question  of  doubt  and 
^lifticaltj,  and  was  settled  by  a  decree  of  this  court  upon  a 
bill  filed  for  that  purpose.  That  Wyckoff  was  firmly  con- 
vinced that  his  testatrix  had  no  right  to  dispose  of  the 
property,  and  that  it  reverted  to  the  estate  of  her  father,  is 


J04  CASES  IN  CHANCERY. 

Wyckoff  et  al.  v.  Wyckofl'et  al. 

evinced  by  the  fact  that  he  did  not  offer  the  will  of  the  tes- 
tatrix for  probate,  but  consented  to  give  up  the  properly  to 
the  executors  of  Jacob  Vandoren.  He  was  in  fact  only  pre- 
vented from  doing  so,  by  a  question  that  arose  as  to  tlie 
amount  for  which  he  was  responsible.  While  under  this  be- 
lief, and  because,  as  he  states,  he  deemed  t!ie  will  of  Lany 
Vandoren  useless  and  inoperative,  he  destroyed  it.  Its  de- 
struction is  clearly  proved,  and  tliat  at  the  time  of  its 
destruction,  Wyckoff  stated  that  it  had  been  decided  that  the 
testatrix  had  no  riglit  to  make  a  will,  and  that  it  was  good 
for  nothing.  It  is  proved  past  all  controversy,  that  the  will 
was  destroyed  by  the  witness  under  the  honest  belief  that 
the  testatrix  had  no  right  to  dispose  of  the  property,  and 
that  consequently  the  will  was  worthless.  Nor  is  there  any 
rational  ground  to  infer  any  fraudulent  purpose  in  the  de- 
struction of  the  will.  The  party  by  whom  it  was  destroyed 
is  the  executor  of  the  will,  aud  the  legatee  of  a  large  portion 
of  the  estate.  He  was  not  one  of  the  next  of  kin  of  the 
testatrix,  and  could  gain  nothing  by  her  intestacy.  There 
is  a  suggestion  in  the  testimony  of  one  of  the  witnesses,  that 
the  will  might  have  furnished  some  evidence  of  the  amount 
of  property  in  the  hands  of  Wyckoff,  and  that  this  was  the 
real  motive  of  its  destruction.  The  answer  to  this  sugges- 
tion is,  that  the  will  of  the  testatrix  could  furnish  no  compe- 
tent evidence  of  the  amount  of  her  property  in  the  hands  of 
her  agent,  he  not  being  the  scrivener;  much  less  could  a  will, 
made  in  1853,  furnish  any  competent  evidence  of  the  amount 
of  her  property  in  1859.  A  more  decisive  answer  is,  that 
when  an  adequate  motive  for  the  destruction  of  the  will  is 
assigned  by  the  party,  and  clearly  established  by  the  evi- 
dence, the  court  will  not,  upon  mere  conjecture,  impute  an 
inadequate  and  dishonest  motive. 

Is  the  party  a  credible  witness?  His  character  for  vera- 
city is  unimj)eached.  There  is  nothing  in  his  testimony, 
calculated  to  impair  the  confidence  which  the  court  may  re- 
})ose  in  the  testimony  of  an  unbiased  witness.  The  circum- 
stances  under  which  the  will  was  destroyed,  are  calculated 


OCTOBER  TERM,  1863.  405 

Wyckoffet  al.  v.  Wyckoff  et  al. 

rather  to  strengthea  than  to  shake  confidence  in  his  integ- 
rity. He  was  the  confidential  agent  and  attorney  in  fact  of 
the  testatrix,  having  in  his  hands  the  bulk  of  her  property 
for  more  than  thirty  years.  He  is  constituted  her  sole  exec- 
utor and  residuary  legatee.  It  is  evident  that  the  testatrix 
reposed  entire  confidence  in  his  integrity  of  character.  The 
court  see  no  reason  to  suppose  that  her  confidence  was  mis- 
placed. 

It  is  said  in  some  of  the  older  authorities,  that  if  the  will 
be  lost,  two  witnesses,  who  are  superior  to  all  exception,  who 
read  the  will,  prove  its  existence  after  the  testator's  death, 
remember  its  contents,  and  depose  to  its  tenor,  are  sufficient 
to  establish  it.  4  Burn's  Eod.  Law  209  ;  Toller  on  Exeou- 
tors  71. 

But  this  statement  does  not  define  the  limit  of  the  rule  even 
in  the  Ecclesiastical  Court. 

In  Trevelyan  v.  Trevclyan,  1  PhllL  149,  the  will  was  es- 
tablished upon  the  testimony  of  one  witness,  and  proof  of  what 
the  testator  said  he  had  done. 

In  Davis  v.  Davis,  2  Addams,  223,  one  witness  testified 
that  the  codicil,  as  near  as  she  could  recollect,  for  she  read  it 
but  once,  was  in  the  following  words  (stating  the  bequest). 
"  Tliis  she  knows  was  the  substance,  though  she  will  not 
undertake  to  swear  that  she  has  given  the  words  correctly." 
Sir  John  Nicholl  said,  the  tenor  of  the  codicil  is  proved  by 
the  probability  of  the  disposition,  by  the  declaration  of  the 
testator,  and  by  a  witness  who  actually  read  it. 

In  Davis  v.  Sigournei/,  8  Melc.  487,  the  fact  that  the  con- 
tents of  the  will  were  attenjpted  to  be  established  by  a  single 
witness,  was  not  suggested  as  a  ground  of  objection.  The  will 
was  rejected  solely  on  the  ground,  that  the  recollection  of  the 
witness  was  not  sufficiently  definite  as  to  the  contents  of  the 
will. 

In  Dickey  v.  Malechi,  6  Missouri  177,  it  was  expressly 
ruled,  that  the  testimony  of  one  witness  is  sufficient  to  prove 
the  contents  of  the  will. 

The  true  rule  is,  that  the  will  may  be  established  upon  sat- 


406  CASES  IN  CHANCERY. 

WyckofF  et  al.  v.  Wyckofl"  et  al. 

isfadory  proof  of  the  destruction  of  the  instrument,  and  of 
its  contents  or  substance.  Whether  tiie  proof  be  by  one  wit- 
ness, or  by  many,  it  must  be  clear,  satisfactory,  and  convinc- 
ing. 

If  the  scrivener  who  drew  the  will,  produce  and  prove  a 
copy  of  the  will,  prepared  and  preserved  by  himself,  there 
would  be  no  hesitation  in  establishing  it,  though  proof  of  its 
contents  rest  upon  the  testimony  of  a  single  witness.  It  is  seen 
that  the  evidence  of  its  contents  is  perfectly  satisfactory.  But 
where  five  witnesses  are  examined  who  do  not  concur  as  to 
the  contents  of  the  instrument,  it  will  be  rejected,  though  the 
witnesses  may  profess  to  speak  with  confidence.  RJiodes  v. 
Vinson,  9  Gill  169. 

In  this  case  the  witness  testifies  with  entire  confidence  and 
distinctness  as  to  the  contents  of  the  will.  He  read  the  will 
two  or  three  times  immediately  before  its  destruction,  and  the 
next  day  reduced  its  contents  to  writing.  That  draft  he  pro- 
duced, and  although  he  does  not  profess  to  recollect  the  words 
used,  he  is  confident  as  to  the  substance  of  the  will.  The  in- 
strument is  brief,  and  its  provisions  might  readily  be  retained 
in  his  recollection.  He  was  probably  familiar  with  its  con- 
tents. It  was  delivered  to  him  on  its  execution,  remained  for 
years  in  his  possession,  and  was  not  destroyed  till  several 
weeks  after  the  death  of  the  testatrix. 

The  tenor  of  the  will  as  proved,  is  sustained  by  the  pro- 
bability of  the  disposition.  The  testatrix  was  a  single  woman, 
advanced  in  years,  not  living  with  her  relatives,  and  having 
her  entire  business  aflPairs  in  the  hands  of  an  agent.  Shd 
gives  legacies  to  two  of  her  nieces,  and  to  persons  with  whom 
she  had  lived,  or  who  had  befriended  her,  and  the  residue  of  ' 
the  property  to  her  friend  and  agent,  upon  whom  she  relied 
for  the  care  of  her  money  and  the  transaction  of  her  business. 
As  her  means  were  limited,  it  was  natural  that  she  should 
desire  to  satisfy  a  claim  upon  her  justice  out  of  her  property 
arter  her  death,  rather  than  during  her  life.  The  declara- 
tions of  the  testatrix,  if  entitled  to  any  weight,  are  in  accor- 
dance with  the  provisions  of  the  will  as  proved.     There  is 


OCTOBER  TERM,  1863.  407 


Kirkpatrick  v.  Winans. 


nothing  in  the  evidence  offered,  in  the  j)rol)abilities  of  the 
case,  or  in  the  character  of  the  witness,  or  of  his  evidence, 
that  will  justify  a  doubt  as  to  the  credibility  of  the  witness, 
or  the  accuracy  of  his  testimony. 

I  have  withiudd  a  decision  in  tiiis  cause,  not  from  any  doubt 
as  to  the  trutli  of  this  case,  or  because  the  evidence  was  in  itself 
in  any  degree  unsatisfactory,  but  because  I  entertained  serious 
doubt  whether,  upon  grounds  of  public  policy,  a  will  should 
ever  be  established  by  the  testimony  of  a  single  witness,  by 
whom  the  original  will  was  destroyed,  and  who  is  interested 
in  sustaining  it.  On  this  account  the  question  has  been  con- 
sidered as  though  the  bill  were  filed  by  the  witness  himself, 
and  he  alone  were  interested  in  the  I'esult.  In  point  of  fact 
this  bill  is  filed  by  other  legatees.  If  they  alone  were  in- 
terested the  case  is  clear  in  their  favor.  If  the  witness  took 
no  interest  under  the  will,  not  a  doul)t  coidd  be  entertained 
of  their  right  to  recover.  There  is  no  ground  upon  which 
one  part  of  the  will  can  be  established,  anil  the  residue  re- 
jected.    The  same  evidence  extends  to  all  its  provisions. 

A  decree  will  be  made  establishing  the  paj)er  marked 
Exhibit  A,  as  the  will  of  Lany  Vandoren,  and  setting  aside 
the  letters  of  administration  issued  on  the  application  of  the 
next  of  kin,  as  improvidently  granted.  The  cost  of  estab- 
lishing the  will  and  of  taking  out  letters  of  administration, 
must  be  paid  out  of  the  estate.  The  burden  will  justly  fall 
upon  the  residuary  legatee,  by  wdiose  im[)roviilent  act  in 
destroying  the  will,  the  difficulty  has  been  created  and  the 
costs  occasioned. 


Cited  in  Clark  v.  Ilornbeck,  2  C.  E.  Gr.  451. 


Sophia.  A.  Kirkpatrick  vs.  John  T.  Winans. 

1.  Where  a  party  negotiates  with  another's  agent  for  the  loan  of  a  snra 
of  money,  and  delivers  to  the  agent  a  bond  and  mortgage  duly  executed 
to  the  principal,  but  the  whole  amount  of  money  is  not  paid  over  to  the 
mortgagor  by  the  agent ;  in  such  case,  if  the  principal  settle  with  the  ad- 
ministrator of  his  agent,  and  accepts  the  securities  as  evidence  of  so  much 


408  CASES  IN  CHANCERY. 

Kirkpalriok  v.  Winans. 

money  advanced  by  the  agent,  and  allows  the  amount  in  the  settlement  of 
the  account,  the  mortgagor  is  estopped,  as  against  the  principal,  from  deny- 
ing that  he  received  the  money. 

2.  If  the  money  were  not  paid  over  by  the  agent  to  the  mortgagor,  and 
he  designed  to  look  to  the  mortgagee,  he  should  have  given  notice  of  such 
intention.  By  failing  to  do  so,  and  permitting  the  settlement  to  be  made, 
he  is  estopped  from  making  any  claim  against  the  mortgagee. 

3.  The  principal  is  not  liable  for  the  unauthorized  or  wrongful  act  of  his 
agent  in  withholding  a  part  of  tlie  money,  or  in  giving  his  own  notes  pay- 
able at  a  future  day,  in  lieu  of  the  money  of  the  principal  in  his  hands. 
The  remedy  is  against  the  agent  only. 


J.  Chetwood,  for  conij)]ainant. 

1.  The  whole  transaction,  as  between  the  mortgagor  and 
the  mortgagee,  closed  with  the  delivery  of  the  mortgage. 

Whatever  money  was  then  in  the  hands  of  Chetwood,  ho 
held  as  the  agent  of  Winans,  the  mortgagor.  If  not  paid 
over,  he  must  seek  his  reaiedy  against  the  administrator  of 
the  agent. 

2.  The  defendant,  by  his  own  actions,  is  estopped  from 
setting  up  a  claim  against  the  mortgagee. 

The  amount  loaned,  at  the  time  of  the  transaction,  was  in 
the  hands  of  the  agent. 

By  the  execution  and  delivery  of  the  bond  and  mortgage 
the  mortgagor  admitted  the  receipt  of  the  money* 

The  mortgagee  has  settled  with  the  agent  and  his  admin- 
istrator, allowing  him  for  the  full  amount  advanced.  Chee- 
ver  V.  Smith,  15  Johns.  H.  276;  Waters'  Appeal,  11  Casey 
523. 

The  mortgagor  has  paid  interest  on  the  whole  amount  of 
the  morto;ao;e. 


'&"»" 


Williamson,  for  defendant. 

The  Chancellor.  The  bill  is  filed  to  foreclose  a  mort- 
gage given  by  tlie  defendant  to  the  complainant,  bearing 
date  on  the  first  of  January,  1861,  for  $2000,  payable  in  one 
year,  with  interest.     The  defendant,  by  his  answer,  admits 


OCTOBER  TERM,  1863.  409 

Kirkpatrick  v.  Winans. 

the  mortgage,  but  alleges  that  he  did  not  reeeive  the  whole 
amount  of  the  loan  for  which  the  mortgage  was  given.  That 
he  made  the  arrangement  for  the  loan  with  the  agent  and 
attorney  of  the  complainant,  who  is  now  deceased,  who,  as 
such  agent,  agreed  to  advance  !^2000  on  the  mortgage  secu- 
rity. That,  on  the  delivery  of  the  bond  and  mortgage  by  the 
defendant,  nothing  was  paid  to  him,  but  that  he  subsequently 
received  payment,  amounting  in  the  whole  to  $1822.58,  and 
no  more.  That  several  of  these  payments  were  made  long 
after  the  date  of  the  bond,  and  the  defendant  claims  a  de- 
duction of  interest  from  the  principal  of  the  bond  up  to  the 
time  that  such  sums  were  respectively  advanced  to  him.  Evi- 
dence has  been  taken  tending  to  prove  the  allegations  of  the 
answer.  The  only  question  now  submitted  for  decision,  is  not 
upon  the  weight  or  credibility  of  the  evidence,  but  whether, 
admitting  it  to  be  true,  it  is  competent  evidence  to  affect  the 
complainant's  claim  upon  the  mortgage. 

The  complainant  holds  the  defendant's  bond  and  mortgage 
for  the  full  sum  of  $2000.  At  the  date  of  the  mortgage  she 
had,  in  the  hands  of  her  agent,  that  sum  of  money  to  be 
loaned.  It  aj)pears,  by  the  evidence,  that  the  agent  charged 
his  principal  with  the  sum  of  $2000,  as  invested  in  this  bond 
and  mortgage  at  its  date.  Since  the  death  of  the  agent,  the 
mortgagee  has  settled  with  his  administrator  upon  the  basis 
of  that  account,  and,  in  the  settlement,  allowed  the  sum  of 
$2000  for  so  much  advanced  by  the  agent  u[)on  the  mortgage. 
The  bond  and  mortgage  were  evidence  of  so  much  money 
advanced  by  the  agent,  and  upon  the  faith  of  those  securi- 
ties the  administrator  was  entitled  to  a  credit  for  that  amount 
upon  the  settlement.  That  settlement  was  effected  upon  the 
faith  of  securities  which  the  defendant  himself  gave.  He  is 
now  estopped  from  denying  that  he  received  the  money.  If 
he  has  not  received  the  amount  to  which  he  was  entitled  upon 
the  execution  of  the  mortgage,  the  money  is  not  in  the  com- 
plainant's hands,  but  in  the  hands  of  the  agent.  If  the  money 
was  not  paid  over  by  the  agent  to  the  mortgagor,  and  he  de- 
signed to   look  to  the  mortgagee,  he  should   have  given  her 


410  CASES  IN  CHANCERY. 

Kirkpatrick  v.  Winans. 

notice.  By  failing  to  do  so,  and  permitting  her  to  settle  witii 
the  agent,  allowing  hitn  for  the  full  amount  advanced,  he  is 
estopped  from  claiming  the  amount  as  against  the  principal. 
Wyait  V.  Marquis  of  Hertford,  3  East  147  j  Cheever  v.  Smith, 
15  Johns.  R.  276. 

If  the  money  was  withheld,  it  was  the  unauthorized  act  of 
the  attorney,  without  the  knowledge,  consent,  or  approbation 
of  the  principal,  express  or  implied.  She  neither  authorized, 
nor  sanctioned  it.  She  derived  no  benefit  from  it.  The  attor- 
ney had  no  authority  to  withhold  the  money  upon  making 
the  loan,  or  to  give  his  own  notes  in  lieu  of  the  money.  If 
the  attorney  gave  his  own  notes,  payable  at  a  futtire,day, 
without  interest,  in  lieu  of  the  money  of  his  principal  in  bi.s 
hands,  it  was  the  wrongful  act  of  the  attorney,  effected  by  the 
co-operation  of  the  defendant.  The  principal  is  never  liable 
for  the  unauthorized  or  wilful  act  of  his  agent. 

The  only  question  is,  whether  the  defendant  shall  look  for 
redress  to  the  mortgagee,  who  has  advanced  the  full  amount 
of  the  loan,  or  to  the  attorney  in  whose  hands  the  money  is. 
In  equity  there  can  be  no  claim  against  the  mortgagee. 

As  between  the  mortgagee  and  her  attorney,  and  the  mort- 
gagor, the  transaction  is  closed  without  the  imputation  of 
fraud  or  unfairness.  The  defendant's  bond  and  mortgage  has 
been  received  by  the  mortgagee  as  equivalent  for  the  money 
advanced,  and  a  settlement  made  as  between  the  attorney  and 
his  principal. 

After  the  death  of  the  attorney,  the  mortgagor  recognized 
the  validity  of  the  mortgage,  and  paid  interest  upon  it. 

There  were  mutual  dealings  between  the  mortgagor  and 
the  attorney,  who  acted  as  the  agent  of  the  mortgagee,  on 
his  individual  account.  There  was  a  running  account  be- 
tween them,  which  was  open  and  unsettled  at  the  time  of  the 
attorney's  death.  Difficulties  have  arisen  in  regard  to  that 
account.  There  is  no  propriety  in  transferring  that  contro- 
versy to  the  claim  of  the  mortgagee. 

The  defendant  must  account  for  the  amount  due  upon  the 
face  of  the  mortgage. 


OCTOBER  TERM,  1863.  411 


Ex'rs  of  Rowe  v.  AVliite. 


Executors  of  Isaac  Rowe  vs.  Sarah  White. 

Isaac  Rowe,  by  his  last  will  and  testament,  gave  as  follows  :  "I give  and 
devise  unto  Sarah  White  the  sura  of  $5000,  to  be  paid  unto  the  said  Sarah 
White  ;  and  if  the  said  Sarah  White  die  without  an  heir  or  heirs,  the  said 
sum  of  15000  is  to  go  to  Leonard  Crum,  the  son  of  Henry  Crura."  Held — 

The  first  legatee  takes  a  present  vested  interest  in  the  fund,  liable  to  be 
divested  upon  the  contingency  of  her  dying  without  issue.  The  limitation 
over,  being  upon  a  definite  failure  of  issue,  is  good  by  way  of  executory 
bequest. 

1.  In  the  case  of  a  specific  bequest  of  chattels  for  life,  and  a  limitation 
over  by  way  of  remainder,  the  legatee  in  reraainder  is  no  longer  entitled,  as 
formerly,  to  call  upon  the  tenant  for  life  for  security  that  the  chattels  shall 
be  forthcoming  after  his  decease.  The  recognized  practice  of  the  court 
now  is,  to  require  an  inventory  to  be  signed  by  the  devisee  for  life,  and  to 
be  deposited  with  the  master  for  the  benefit  of  all  parties. 

2.  Personal  property  not  given  specifically  but  generally,  or  as  a  residue 
of  personal  estate,  must  be  converted  into  money  ;  the  interest  only  to  be 
enjoyed  by  the  tenant  for  life,  and  the  principal  reserved  for  the  remain- 
derman. This  rule  prevails,  unless  there  be  in  the  will  an  indication  of  a 
contrary  intention. 

3.  Where  a  legacy  is  given  generally,  subject  to  a  limitation  over  upon 
a  subsequent  event,  the  divesting  contingency  will  not  prevent  the  legatee 
from  receiving  his  legacy  at  the  end  of  a  year  from  the  testator's  death, 
and  he  is  not  bound  to  give  security  for  repayment  of  the  money  in  case 
the  event  should  happen. 

4.  In  the  case  of  a  legatee  for  life,  or  subject  to  a  limitation  over,  in  or- 
der to  justify  the  requisition  of  security  from  the  first  legatee,  there  must 
be  danger  of  the  loss  of  the  property  in  the  hands  of  the  first  taker. 

5.  The  mere  fact  that  the  legatee  for  life  is  a  feme  covert,  cannot  in  itself 
furnish  any  evidence  of  danger  of  loss. 

6.  A  bill  for  relief  on  the  ground  of  danger  of  loss  of  a  legacy  for  life, 
subject  to  a  limitation  over  by  way  of  remainder,  is  in  the  nature  of  a 
bill  quia  timet,  and  may  be  filed  as  well  against  the  executor  himself, 
where  the  fund  is  in  his  hand,  as  against  the  legatee  for  life,  where  the  fund 
is  in  his  hand. 


JB.  VansijcJcel,  for  complainants. 

It  is  admitted  that  Sarah  White,  the  first  legatee,  took  an 
estate  for  life.  The  statute,  Nix.  Dig.  917,  §  4,  removes  all 
doubt  as  to  the  construction. 


412  CASES  IN  CHANCERY. 

Ex'rs  of  Eovve  v.  White. 

It  is  admitted  that  tiie  legatee  for  life  is  forty-six  years  of 
age,  that  she  has  never  had  any  children,  and  that  her  hus- 
band is  still  living. 

The  recent  cases  show  that  the  legatee  for  life  is  entitleiA 
to  the  fund  without  security,  unless  there  is  something  spe- 
cial, which  in  the  discretion  of  the  executors  requires  it. 
Skrnnmg  v.  Style,  3  P.  IF.  334  ;  Leehc  v.  Bennet,  1  Aih. 
470 ;  Bill  v.  Kinaston,  2  Atk.  82 ;  Covenhoven  v.  Sh'uler,  2 
Paige  132  ;  Howe  v.  Earle  of  Dartmouth,  7  Vesey  137  ;  Grif- 
Jiths  V.  Smith,  1  Vesey  97 ;  Colston  v.  Morris,  6  Madd.  89  ; 
Loveday  v.  Hopkins,  Ambler  273;  1  Roper  on  Leg.  315;  9 
3fod.  93 ;  2  Kent^s  Com.  354,  notes ;  Evans  v.  Iglehart,  6 
Gill  &  Johns.  171  ;  De  Peyster  v.  Clendining,  8  Paige  295. 

If  a  legacy  goes  into  the  hands  of  a  married  woman,  the 
husband  will  take  it.  It  will  be  lost  to  the  legatee  in  re- 
mainder. 

If  a  sj)endthrift  or  insolvent  were  about  to  receive  it,  se- 
curity would  be  required. 

If  the  legacy  remain  in  the  hands  of  the  executors,  and 
there  is  danger  of  loss,  security  may  be  required.  Cleveland 
V.  Havens,  2  Beas.  101. 

Van  Fleet,  for  defendant. 

The  bill  does  not  raise  the  question  of  danger.  The  only 
question  is  as  to  the  personal  liability  of  the  executors. 

Mrs.  Wiiite  will  hold  the  fund  as  an  unmarried  woman. 
Nix.  Dig.  503,  §  3. 

The  intention  is  clear.  It  is  a  gift  of  money  to  be  paid 
over,  not  of  use. 

The  executors  must  execute  the  will.  Thus  only,  will  they 
be  relieved  from  liability. 

Leonard  Crum  must  look  to  the  estate  of  Mrs.  White,  not 
to  the  executors.     Dewilt  v.  Schoonmaker,  2  Johns.  R.  243. 

I  admit  that,  at  the  instance  of  Crum,  the  legatee  in  re- 
mainder, the  court  might  require  security.  1  Story's  Eq.,  § 
601. 


OCTOBER  TERM,  1863.  413 

Ex'rs  of  Rowe  v.  White. 

The  legatee  in  remainder  is  a  party,  but  does  not  answer. 
He  does  not  ask  security.  2  Will  lams  on  E.v'vs  1192;  18 
Vesey  131  ;  1  Vesey  97  ;  1  Roper  on  Leg.  [M  ed.)  752 ;  Hull 
V.  Eddy,  2  Green' s'^B.  169. 

As  to  the  question  of  costs.  Kay  v.  Kay's  Ex'rs,  3  Green's 
Ch.  R.  502;  2  Beas.  121. 

Beasley,  on  the  same  side. 
There  are  three  ch\sses  of  cases. 

1.  Bequests  of  specific  chattels. 

In  the  case  of  a  bequest  of  specific  chattels,  the  old  prac- 
tice was  to  require  security  of  the  legatee  for  life.  Bracken 
V.  Benthj,  1  Ch.  R.  lio";  Hart  v.  Hart,  Ibid.  260;  1  Eq. 
Cases  Ab.  78 ;    Freeman's  Ch.  R.  case  280,  p.  206. 

The  practice  was  changed  before  Hardwicke's  time,  on  prin- 
ciple. An  inventory  was  then  required  to  be  deposited  with 
the  master ;  security  no  longer  taken.  Bill  v.  Klnaslon,  2 
Att  82:  Leeke  v.  Bennet,  1  Aik.  470;  2  P.  W.  1258;  2 
Kent's  Com.  354 ;  Foley  v.  Barnell,  1  Brd.  Ch.  R.  279 ;  Gon- 
dultt  V  Soane,  1  Collyer's  R.  285. 

The  rule  is  changed  to  carry  out  the  intention  of  the  tes- 
tator.    Here  the  testator  did  not  require  security. 

2.  General  bequest  of  residue  of  personal  estate  for  life, 
with  remainder  over. 

There  the  executors  were  to  convert  property  into  monej' ; 
invest  the  proceeds,  and  pay  the  interest  to  the  legatee  for 
life.     2  Kent's  Com.  354  ;  1  Story's  Eq.,  §  604,  note  1. 

3.  Legacy  given  generally,  subject  to  limitation  over  on 
the  happening  of  a  subsequent,  event. 

There  legatee  never  required  to  give  security,  except  in 
case  of  danger.  All  cases,  with  one  exception,  agree.  2 
Williams  on  Ex'rs  1251,  1192;  1  Roper  on  Leg.,  {2d  Am. 
ed.)  ch.  14,  §  2,  J).  861.  The  contrary  doctrine  held  in  Cal- 
houn V.  Thomson,  2  Ilolloy  281. 

The  principle  is,  that  as  the  testator  has  entrusted  the  legatee 
with  money,  no  one  has  authority  to  require  security.     Hull 

Vol.  I.  2c' 


414  CASES  IX  CHANCERY. 

Ex'rs  of  Rowe  v.  White. 

V.  Eddy,  2  Green's  R.  169,  176  ;  Vimpell's  E.vrs  v.  Veghte, 
Ibid.  207;  FTomer  v.  Ske/ton,  2  Melc.  194  ;  //(ir/.so?i  v.  Wads- 
worth,  8  Conn.  319  ;  Langworthy  v.  Ckadivick,  13  Cbnn. 
46. 

A  case  of  danger  must  be  made  in  pleading.  The  legatee 
for  life  might  show  that  she  has  a  large  estate,  and  that  there 
was,  theref)re,  no  cause  for  requiring  security.  She  has  a 
right  to  res[)ond. 

The  mere  fact  that  the  legateee  for  life  is  a  married  woman, 
does  not  make  a  case  of  danger. 

If  the  court  say  she  must  give  security,  it  must  declare  ia 
all  cases  that  the  wife  must  give  security. 

The  will  expressly  directs  payment  to  her.  It  was  the  in- 
tention of  the  testator. 

Wurts,  in  reply. 

The  will  is  inartificially  drawn.  The  phrase  to  be  "  paid 
to  legatee,"  makes  no  difference. 

It  is  immaterial  whether  Crum  has  answered  or  not.  Cleve- 
land V.  Havens,  2  Beas.  101. 

In  the  absence  of  danger  no  security  will  be  required  ;  if, 
however,  there  is  danger,  it  will  be  required. 

It  was  a  delicate  matter  for  Crum,  the  executor,  to  ques- 
tion the  solvency  of  his  sister  and  her  husbaiid.  So  it  was 
for  the  nephew  and  legatee  in  remainder. 

Mr.  Wurts  further  cited,  1  P.  W.  502,  652  ;  Falrchild  v. 
Crane,  2  Beas.  105  ;  CondicCs  Ex'rs  v.  King,  Ibid.  375  ;  Kay 
V.  Kay's  Ev'rs,  3  Green's  Ch.  R.  502 ;  31  Ala.  379 ;  2  Jar- 
man  on  Wills  499  ;  Stone  v.  Maule,  2  Sim.  490  ;  1  Story's  Eq., 
§  597,  603  ;  Horrell  v.  Waldron,  1  Vernon  26  ;  2  Fonb.  Eq. 
321  {Blk.  4,  p.  1,  cA.  1,  §  2);  2  Story's  Eq.  845,  845  a; 
Cooper  V.   Williams,  Finch's  Prec.  in  Ciian.  72,  case  65. 

The  Chancellor.  Isaac  Rowe,  of  the  county  of  Hunter- 
don, in  and  by  his  last  will  and  testament,  gave  as  follows  : 
^*  I  give  and  devise  unto  Sarah  White,  the  wife  of  JohnWhite, 


OCTOBER  TERM,  1863.  415 

Ex' IS  of  Rowe  v.  While. 

the  sum  of  $5000,  to  be  paid  unto  the  said  Sarah  White  ; 
and  if  tlie  said  Sarah  VV^iiite  die  without  an  iieir  or  heirs,  the 
said  sum  of  $5000  is  to  go  to  Leonard  Cruai,  the  son  of 
Henry  Cruni." 

The  executors  have  fik^d  tlieir  bill  a2;ainst  the  first  legatee 
and  her  husband,  and  the  legatee  in  remainder,  asking  that 
the  proper  construction  of  the  bequest  should  be  settled  for 
their  aid  and  direction,  and  that  the  money  may,  for  their 
protection,  be  paid  under  the  direction  of  the  court. 

The  bill  alleges  that  the  legatee,  Sarah,  and  her  husband, 
demand  the  payment  of  the  legacy,  and  threaten  to  institute 
proceedings  at  law  against  the  executors,  unless  tiie  money  is 
forthwith  paid  ;  and  that  Leonard  Crum,  the  legatee  in  re- 
mainder, forbids  the  payment  of  the  money  to  Sarah  White, 
unless  she  give  ample  security  that  the  legacy  shall  be  paid  to 
Crum,  in  case  the  said  Sarah  White  should  die  without  issue. 

Sarah  White  and  her  husband  have  answered  the  bill, 
claiming  the  payment  of  the  legacy  without  giving  security. 
No  answer  has  been  filed  by  Crum.  There  is  no  dispute  as 
to  the  flicts.  Sarah  White,  the  legatee,  has  had  no  issue  born 
of  her  body,  and  is  forty-five  years  of  age. 

There  can  be  no  (piestiou  as  to  the  construction  and  effect 
of  the  bequest.  Sarah  White,  the  first  legatee,  takes  a  present 
vested  interest  in  the  fund,  liable  to  be  divested  upon  the  con- 
tingency of  her  dying  without  issue.  The  limitation  over 
being  upon  a  definite  failure  of  issue,  is  goofl  by  way  of  execu- 
tory bequest.  Halt  v.  Eddy,  2  Green's  E.  175,  and  cases 
there  cited. 

The  only  question  made  by  the  pleadings  is,  whether  the 
first  legatee  is  entitled  to  receive  the  fund,  without  giving 
security  for  its  repayment  in  the  event  of  her  dying  without 
issue. 

Where  there  is  a  specific  bequest  of  chattels  for  life,  and 
a  limitation  over  by  way  of  remainder,  the  ancient  rule  in 
chancery  was,  that  the  person  entitled    in   remainder,  could 


416  CASES   IN  CHANCERY. 

Ex'rs  of  Eowe  v.  White. 

call  upon  the  tenant  for  life  for  security  that  the  chattels? 
should  be  forthcoming  after  his  decease  ;  the  tenant  for  life 
being  regarded  as  a  trustee  for  the  remainderman.  Bracken 
V.  Bently,  1  Ch.  i?.  110;  Hart  v.  Hart,  Ibid.  260;  1  Eq. 
Cas.  Ab.  78,  "Bills  E ;"  Vachel  v.  Vachel,  1  Chan.  Cas. 
129  ;  Ereeman's  Ch.  B.  206,  case  280. 

The  last  of  these  cases  was  decided  in  1695.  In  Leehe  v. 
Bennet,  1  Athjns  470,  decided  in  1737,  upon  an  application 
by  the  legatee  in  remainder,  that  the  legatee  for  life  should 
give  security  for  the  forthcoming  of  the  goods,  Lord  Chan- 
cellor Hardwicke  is  reported  to  liave  said,  he  never  knew  it 
done,  and  therefore  would  not  oblige  the  defendant  to  do  it, 
but  directed  an  inventory  to  be  made  and  signed  by  the  de- 
fendant and  his  wife,  who  was  the  legatee  for  life,  and  to  be 
delivered  to  the  plaintiff. 

In  Bill  V.  Kinasion,  2  Athnis  82,  decided  in  1740,  the  same 
Lord  Chancellor  is  rej)orted  to  have  said,  that  where  goods 
are  given  to  a  person  for  life  only,  the  old  rule  of  the  court 
was,  that  such  person  should  give  security  that  they  should 
not  be  embezzled  ;  but  the  method  now  is  for  an  inventory  to 
be  signed  by  the  devisee  for  life,  and  to  be  deposited  with  the 
master  for  the  benefit  of  all  jiarties. 

Since  the  time  of  Lord  Talbot,  in  1734,  this  seems  to  have 
been  the  recognized  practice  of  the  court.  Slanning  v.  Style, 
3  P.  W.  336  ;  Richards  v.  Baker,  2  Atkpw  321  ;  Foley  v. 
Burnell,  1  Bi'own^  Ch.  Cas.  249  ;  Gondidtt  v.  Soane,  1  Coll- 
ye)''s  R.  285;  Covenhoven  v.  SImler,  2  Paige  132;  De  Pey- 
ster  v.  Clendining,  8  Paige  303  ;  2  Kcnfs  Com.  354 ;  2  Wil- 
liams on  Ex'rs  1258. 

This  class  of  cases  is  limited  to  specific  bequests  of  chattels 
to  the  first  taker  for  life  only. 

But  personal  property,  not  given  specifically  but  generally, 
or  as  a  residue  of  personal  estate,  must  be  converted  into 
money  ;  the  interest  only  enjoyed  by  the  tenant  for  life,  and 
the  principal  reserved  for  the  remainderman.  Howe  v.  Earl 
of  Dartmouth,  7  Vesey  137  ;  Benn  v.  Dixon,  10  Simons  636  ; 
Chambers  v.  Chambers,  15  Simons  183  ;    Randall  v.  Russell, 


OCTOBER  TERM,  1863.  417 

Ex'rs  of  Rowe  v.  While. 

3  Mer.  193;  Covenhoven  v.  Shuler,  2  Paige  122;  Clark  y. 
Clark,  8  Paige  152;  Cairns  v.  Chauberi,  9  Paige  163  ;  Hull 
V.  Edily,  2  Green's  R.  176;  AcJceniuni's  Adinrs  v.  VrccULncTs 
Ex'r,  1  McQirfer  23  ;  2  Kent's  Com.  353  ;  Lewis  on  Perp. 
100  ;  2  6Vo/-^'s  £"(7.  /it/'.,  §  845  a. 

Tlie  rule  i)revails,  unless  there  be  in  the  will  an  indication 
of  a  contrary  intention.  Collins  v.  Collins,  2  Mylae  &  Keene 
703  ;  Pickering  v.  Pickering,  2  Beavan  31  ;  *S.  (7.  4  Mylne 
<£•  C/-.  289  ;  Randall  v.  i?«6-se/^,  3  il/f;r.  194  ;  i/eyviV/  v.  £'m- 
o?7,  10  Pick.  512  ;  2  n7///a»is  on  ^IcVs  1197. 

But  where  a  legacy  is  given  generally,  subject  to  a  limita- 
tion over  upon  a  subsequent  event,  the  divesting  contingency 
will  not  prevent  the  legatee  from  receiving  his  legacy  at  the 
end  of  a  vear  from  the  testator's  death  :  and  he  is  not  bound 
to  give  security  for  repayment  of  the  money  in  case  the  event 
should  happen.  Griffiths  v.  Smith,  1  Vesey  97  ;  Fawkes  v. 
Gray,  18  Vesey  131  ;  Hull  v.  Eddy,  2  Green's  R.117  ;  Ex'rs 
of  Condict  V.  King,  2  Beas.  383  ;  2  Williams  on  Ex'rs,  1192; 
Homer  v.  Shelton,  2  3fetc.  194;  Fiske  v.  Cobb,  6  (?/■«_(/ ,144  ; 
1  Roper  on  Leg.,  c/i.  14,  §  11,  684;  Hudson  v.  Wadsworth, 
8  Conn.  349  ;  Langworthy  v.  Chadwick,  13  Conn.  46. 

Either  in  the  case  of  a  legatee  for  life,  or  subject  to  a  limi- 
tation over,  in  order  to  justify  the  requisition  of  security  from 
the  first  legatee,  there  must  be  danger  of  the  loss  of  the 
property  in  the  hands  of  the  first  taker.  Slanning  v.  Style, 
3  P.  W.  334  ;  Conduitt  v.  Soane,  1  Collyer's  R.2S5;  Homer 
v.  Shelton,  2  Mete.  194  ;  Fiske  v.  Cobb,  6  Gray  144  ;  Hudson 
v.  Wadsioorth,  8  Conn.  249;  Langu-orthy  v.  Chadwick,  13 
Conn.  46. 

In  Slanning  v.  *S'^y?(?,  Lord  Talbot  says  :  "  Generally  speak- 
ing, where  the  testator  thinks  fit  to  repose  a  trust,  in  such  case, 
until  some  breach  of  that  trust  be  shown,  or  at  least  a  ten- 
dency thereto,  the  court  will  continue  to  intrust  the  same 
hand,  without  calling  for  any  other  security  than  what  tlie 
testator  has  required."  But  in  that  case  the  legatees  in  re- 
mainder were  also  the  executors,  and  to  the  trust  reposed  iu 


418  CASES  IN  CHANCERY. 

Ex'rs  of  Howe  v.  Wliiti. 

them  in  that  capacity  by  the  testator,  the  remark  of  the  Chan- 
cellor must  have  been  mainly  directed. 

But  ii[)or)  a  somewhat  analogous  principle,  regarding  the 
first  legatee  as  a  trustee  for  the  legatee  iu  remainder,  the 
courts  have  held  that  to  require  security,  excejit  in  case  of 
danger,  woultl  not  be  iu  accordance  with  the  will  of  the  tes- 
tator. 

In  the  absence  of  any  suggestion  of  danger  or  loss,  the 
legatee  in  this  case  is  entitled  to  receive  her  legacy  without 
giving  security,  either  to  the  executors  or  to  the  legatee  in 
remainder.  Under  such  circumstances,  the  executors  incur 
no  personal  hazard  by  paying  the  money. 

It  was  urged  upon  the  argument  that  the  mere  fact  that 
the  first  legatee  is  a  married  won)an,  furnishes  evidence  of 
danger  of  loss,  upon  which  the  coiirt  should  I'equire  security 
for  the  protection  of  the  legatee  in  remainder.  The  mere 
fact  that  the  legatee  is  a  feme  covert,  cannot  in  itself  furnish 
any  evidence  of  danger  of  loss.  Both  she  and  her  husband 
mtiy  be  entirely  responsible.  But  if  the  fict  were  otherwise, 
it  could  not,  under  the  pleadings  in  this  cause,  constitute  any 
ground  for  the  interference  of  the  court.  No  relief  is  sought 
upon  that  ground,  nor  does  the  bill  contain  any  intinmtion 
of  danger  of  loss.  Application  for  relief  upon  tliat  gi"ound 
would  come  more  appropriately  from  the  legatee  in  remain- 
der, or  if  he  be  an  inllint,  from  his  guardian  or  next  friend. 
Usually,  where  the  court  have  required  security,  it  has  been 
at  the  instance  of  the. legatee  himself.  Such  bills  are  in  the 
nature  of  a  bill  {]ula  {had,  and  may  be  filed  as  well  against 
the  executor  himsell",  where  the  fund  is  in  his  hand,  as  against 
the  legatee  for  life,  whei-e  thefun(J  is  in  his  hand.  1  Eq.  Cos. 
Ab.  78,  "Bills  i?;"  1  MaddoGh's  Ch.  Fr.  219  ;  1  Story's  Eq. 
Jur.,  §  730;  2  Slori/s  Eq.  Jar.,  §  845. 

If  any  real  ground  of  apprehension  of  danger  appeared 
upon  the  face  of  the  |)leadings,  and  was  admitted  or  supported 
l)y  evidence,  the  court  would  require  the  security.  I  shall 
declare   upon   the  case  as   it  now  stands   before  me,  that  the 


OCTOBER  TERM,  1863.  419 

Morris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  et  al. 

executors  are  authorized   to  pay  over  the  money  to  the  first 
legatee  without  security. 

If  the  danger  of  loss  really  exist,  or  if  it  should  hereafter 
arise,  the  determination  of  this  case  will  not  prevent  an  order 
for  security  upon  the  application  of  the  party  interested. 

Cited  in  Howard  v.  Howard's  Ex'r,  1  C.  E.  Gr.  488 :  Jones'  Ex'rs  v. 
Stites,  4  a  E.  Gr.  327  ;  Parker's  Ex'rs  v.  Moore,  10  C.  E.  Gr.  23(5 ; 
Drummond's  Ex'rs  v.  Drammond,  11  C,  E.  Gr.  239;  Hennion's  Ex'rs 
V.  Jacobus,  12  C.  E.  Gr.  29. 


The  Morris  Caxal  axd  Banking  Company  vs.  The 
Central  Railroad  Company  op  New  Jersey  and 
others. 

1.  To  entitle  a  party  to  an  injunction,  his  title  to  the  property  and 
rights  claimed  by  hira,  and  for  the  protection  of  which  he  asks  the  inter- 
position of  the  court,  must  appear  in  a  clear  and  satisfactory  manner. 

2.  Thfc  making  and  filing  of  the  survey  required  by  the  5ih  section  of 
the  act  incorporating  the  "  Morris  Canal  and  Banking  Company,"  (Paviph. 
L.  1824,  p.  160,)  is  a  necessary  prerequisite  to  the  taking  of  any  lands  un- 
der the  powers  given  by  the  charter. 

3.  It  is  an  established  rule  in  the  exposition  of  statutes,  that  the  inten- 
tion of  the  legislature  is  to  be  derived  from  a  view  of  the  whole,  and  of 
every  part  of  the  statute  taken  and  compared  together.  The  real  intention, 
when  ascertained,  will  prevail  over  the  literal  sense  of  terms.  When 
words  are  not  explicit,  the  intention  is  to  be  collected  from  the  context, 
from  the  occasion  and  necessity  of  the  law,  from  the  mischief  felt,  and  the 
remedy  in  view ;  and  the  intention  is  to  be  taken  or  presumed,  according 
to  what  is  consonant  to  reason  and  good  discretion. 

4.  As  a  rule  of  construction,  the  legislature  ought  to  be  considered  as  in- 
tending to  grant,  by  a  charter  of  incorporation,  such  powers 'only  as  are 
necessary  or  useful  to  the  end  or  object  which  they  had  in  view  in  creating 
the  corporation.  They  ought  not  to  be  understood  as  granting  anything 
more,  unless  the  intention  to  do  so  is  plainly  expressed,  or  beyond  a  doubt. 

5.  In  public  grants  the  grantee  can  take  nothing  not  clearly  given  him 
by  the  grant.  In  cases  of  doubt,  the  grant  is  construed  in  favor  of  the  state, 
and  most  strongly  against  the  grantee. 

6.  The  third  section  of  the  "  act  to  incorporate  the  Associates  of  the 
Jersey  Company,"  {Pamph.  L.,  1804, p.  370,)  enacts  as  follows:  "  That  the 
said  Associates  shall  have  the  privilege  of  erecting  or  building  any  docks, 
wharves,  and  piers,  opposite  to,  and  adjoining  the  said  jiremises  in  Hud- 
son river,  and  the  bays  thereof,  as  far  as  they  may  deem  it  necessary  for 
the  improvement  of  the  said  premises,  or  the  benefit  of  commerce,  and  to 


420  CASES  IN  CHANCERY. 

Morris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  et  al. 

appropriate  the  same  to  their  own  use."  Held,  that  this  section  merely 
gave  tlie  Associates  a  privilege  or  license  to  build  docks,  wharves,  and 
piers,  in  the  waters  of  the  Hudson  river,  and  the  bays  aforesaid,  in  the 
manner  therein  mentioned,  and  when  so  built,  to  appropriate  them  to  their 
own  use,  and  conferred  upon  thera  no  power  to  transfer  or  convey  such 
privilege  or  license  to  any  other  corporation.  Held  further,  that  the  land 
not  so  occupied  and  built  upon  was  not  granted  to  the  Associates,  and  that 
the  same  and  all  rights  in  and  over  it  remain  in  the  state  as  before. 

7.  This  court  will  not  interpo'^e  by  injunction  to  prevent  an  apprehended 
injury,  which  is  not  irreparable,  and  wliich  is  capable  of  compensation  in 
damages. 

8.  An  injunction  should  only  be  issued  in  cases  of  great  injury,  where 
courts  of.law  cannot  afford  an  adequate  or  commensurate  remedy  in  dam- 
ages. Tiie  riglit  must  be  clear,  and  the  injury  be  impending  or  threatened, 
so  as  to  be  averted  only  by  tlie  protecting,  preventive  process  of  injunction. 


Upon  tlic  filing  of  the  bill  in  this  cause,  an  order  was  made 
that  the  defendants  show  cause  why  an  injunction  should  not 
issue  according  (o  the  prayer  of  the  hill,  and  granting  a 
temporary  injunction  in  the  meantime.  The  defendants  filed 
their  answers,  and  affidavits  were  taken,  under  an  order  of 
the  court,  to  he  read  upon  the  argument  of  the  rule  to  show 
cause.  The  cause  was  heard,  by  direction  of  the  Chancellor, 
before  James  Wilson,  esquire,  one  of  the  masters  of  the 
court,  upon  the  rule,  upon  the  bill,  answers,  and  affidavits. 

J.   W.  Scuddcr  and  Zabriskie,  for  complainants. 

Browning  and  Williamson,  for  defendants. 

The  Master.  The  complainants,  by  their  bill,  set  forth 
that  under  their  charter  and  the  supplements  thereto,  they 
constructed  their  canal  from  the  waters  of  the  Delaware  to 
the  waters  of  the  Hudson,  and  that,  in  its  easternmost  sec- 
tion, it  crosses  the  Hackensack  river  and  Mill  creek,  and  that 
<the  same  are  navigable  streams.  That  the  canal,  from  the 
Hackensack  on  the  west  to  the  PIndson  on  the  east,  is  fed  or 
supplied  with  water  by  the  tide  waters  of  New  York  bay,  at 
,a  place  called  Fiddler's  Elbow,  and  by  the  tide  waters  which 
flow  up  from  Hudson  river  or  New  York  bay  into  Mill  creek, 
and  also  by  the  tide  waters  of  Hudson  river,  where  the  canal 
terminates.     That  said  easternmost  section  has  not,  since  its 


OCTOBER  TERM,   18G3.  421 

Morris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  el  al. 

construction,  had  any  other  feeders  than  the  tide  waters  of 
the  Hackensaek,  the  tide  waters  of  Now  York  bay  at 
Fiddler's  Elhow,  the  tide  waters  of  Mill  creek,  and 
the  tide  waters  of  the  Hudson  ;  and  that  all  of  said 
feeders  are  essential  to  the  navigation  of  the  canal  in 
its  easternmost  section.  That  Mill  creek,  in  its  main 
course,  runs  in  a  southerly  direction,  and  empties  into  Hud- 
son river  or  Cummiininaw  bay,  and  is  crossed  by  the  canal, 
aboBt  four  hundred  and  fifty  yards  from  its  mouth,  and  that 
the  creek  is  navigable  from  its  mouth  to  the  place  where  it 
is  crossed  by  the  canal.  That  the  complainants  have  made 
an  outlet  in  the  canal  at  Mill  creek,  and  the  same  has  been 
used  to  pass  boats  to  and  from  the  Hudson.  That  between 
Beach  and  Henderson  streets,  in  Jersey  City,  there  is  a  si)ace 
of  about  five  hundred  and  fifty  feet,  where  the  southerly  bank 
of  the  canal  is  washed  by  the  tide  waters  of  Comraunipaw 
bay,  and  where  boats  carrying  freight  on  the  canal  can  dis- 
charge their  cargoes,  and  from  which  bank  such  cargoes  can 
be  re-shippeil  into  vessels  navigating  said  river  or  bay.  That 
the  complainants  have  the  right  of  navigation  to  and  from 
the  bank  of  their  canal,  between  Beach  and  Henderson  streets, 
to  the  oj)en  waters  of  Hudson  river,  and  that  thoy  have  title 
to  lands  under  water  between  saiil  streets  and  south  of  their 
canal,  as  far  south  as  South  street,  which  is  also  under  water. 
That  they  are  riparian  owners  for  the  space  of  about  five 
hundred  and  fifty  feet  between  Beach  and  Henderson  streets, 
and  tiiereby  have  access  to  the  Hudson  river  and  the  bays 
thereof.  That  from  the  line  of  Henderson  street  to  the  ohl 
boundary  ditch  of  the  Associates  of  the  Jersey  Company,  a 
distance  of  about  nine  hundred  feet,  the  canal  was  constructed 
in  the  waters  of  Hudson  river  and  Commuhipaw  bay,  and 
that  its  embankment  is  now  washed  l)y  the  said  waters  at  low 
tide.  That  the  comj)lainants  own  in  fee  the  lands  and  lands 
under  water,  lying  northerly  of  and  next  adjoining  to  said 
canal,  and  between  Henderson  street  on  the  west,  and  the 
easterly  side  of  said  ditch,  including  lands  in  that  space  lying" 


422  CASES  IN  CHANCERY. 

Morris  Canal  and  Banking  Co.  v.  Central  Kailroad  Co.  et  al. 

upon  and  along  the  original  high  water  line  of  Comniunipaw 
bay.  And  tiie  oonveyanees  or  muniments  of  title  under 
which  the  complainants  claim  the  property  and  rights  afore- 
said, are  stated  or  referred  to  in  the  bill. 

The  bill  further  states,  tliat  within  the  present  limits  of 
Jersey  City  is  a  tract  of  land  formerly  called  Powles'  Hook, 
which  was  formerly  owned  by  "  The  Associates  of  the  Jersey 
Company,"  and  that  said  Associates  had,  by  their  charter,  a 
right  of  property  in  the  lands  under  water  adjoining  Powles' 
Hook,  in  the  Hudson  river,  Comrnunlpaw  bay,  and  Harsimus 
bay,  and  a  right  to  build  docks,  wharves,  and  piers,  opposite 
to  and  adjoining  said  premises,  and  that  they  conveyed  all 
their  said  lands  under  water,  and  their  said  right,  to  the 
complainants,  by  deeds  and  conveyances  mentioned  in  the 
bill.  That  finding  that  they  needed  further  dock  or  basin 
room  for  the  accommodation  of  their  business,  the  complain- 
ants constructed,  between  the  month  of  October,  1859,  and 
the  month  of  October,  1860,  a  dock  or  basin  on  the  lands 
under  water  so  by  them  acquired  of  said  Associates.  That 
said  basin  was  constructed  on  the  southerly  side  of  Jersey 
City  and  adjoining  the  same,  and  in  the  waters  of  Hudson 
river  or  Comniunipaw  bay,  by  sinking  crib-work  filled  with 
stone  and  earth  ;  said  basin  being  about  nine  hundred  feet  in 
width  and  about  eighteen  hundred  and  fifty  feet  long  on  the 
easterly  side,  and  about  sixteen  hundred  and  fifty  feet  long 
on  the  westerly  side.  That  they  constructed  the  same  under 
the  titles  acquired  in  the  manner  stated  in  their  bill,  and 
under  the  powers  given  by  their  charter  and  the  supplements 
thereto,  and  under  the  express  authority  given  by  the  said 
Associates,  and  lawfully  transferred  to  the  complainants. 

The  bill  further  states,  that  the  Central  Railroad  of  New 
Jersey  have  located  the  route  of  a  railroad  which  they  in- 
tend to  construct,  and  that  said  route  in  its  course  enters 
Coramunipaw  bay,  and  extends  through  the  waters  thereof,- 
and  crosses  the  southern  part  of  said  basin,  and  that  the 
company  have  commenced  making,  and  intend  to  complete, 


OCTOBER  TERM,  1863.  423 

Morris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  et  al. 

in  the  said  waters  on  the  line  of  said  route,  a  solid  embank- 
ment or  bulkhead,  and  that  the  execution  of  tiie  plan  of  the 
railroad  company  will  destroy  the  basin  of  the  com[)lain- 
ants,  and  will  destroy  Mill  creek  as  a  feeder,  will  deprive  the 
complainants  of  their  rights  as  riparian  owners,  will  shut  off 
all  navigation  within  the  northerly  part  of  Communipaw 
bay,  render  access  to  a  large  portion  of  the  bank  of  their 
canal  imj)Ossible,  and  will  work  irreparable  injury  to  the 
complainants.  That  the  railroad  company  claim  that  they 
are  authorized  to  construct  their  road  and  said  embankment 
under  a  supplement  to  their  charter,  whereas  tlie  complain- 
ants insist  that  said  suj)plement  gives  said  comj)any  j)ower 
to  constuct  the  same  only  to  the  said  bay  and  no  further, 
and  does  not  authorize  them  to  construct  said  embankment 
in  the  waters  of  the  bay.  That  the  railroad  company  deny 
the  complainants'  right  to  the  basin,  and  are  about  to  occupy 
a  part  of  it  as  aforesaid,  and  destroy  their  other  rights  with- 
out making  them  compensaiion,  and  that  they  and  the  Mayor 
and  Common  Council  of  Jersey  City  are  corruj)tIy  cond:)ining" 
to  injure  the  complainants  by  the  means  before  statecl. 

An  injunction  is,  therefore,  prayed  for,  to  restrain  the  de- 
fendants from  constructing  said  embankment  or  bulkhead,  or 
doing  any  other  injury  to  said  basin,  and  the  complainants' 
said  other  property  and  rights. 

The  answer  of  the  railroad  company  admits  the  existence 
of  some,  but  not  all  the  deeds  and  conveyances  set  Ibrth  by 
the  bill,  but  denies  that  they  have  the  effect  claimed  in  the 
bill,  and  denies  that  the  feeder  at  Mill  creek  is  essential  to 
the  canal,  and  states  that  the  outlet  from  the  canal  to  the 
creek  has  been  but  very  lately  constructed,  and  is  of  little 
value,  and  was  constructed  only  to  make  out  a  case  against 
the  defendants,  to  obtain  an  injunction  ;  and  also  (hat  the 
complainants  have  a  steam  pump  at  the  Hackensack  river, 
which  furnishes  an  important  p;'rt  of  the  water  to  the  canal. 

The  answer  also  denies  some  of  the  rights  claimed  by  the 
bill,  west  of  the  old  boundary  ditch,  and  also  denies  that  the 
coraplaiuants    had    any  right    to    construct   said    basin,  and 


424  CASES  IN   CHANCERY. 

Morris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  et  al. 

charges  that  the  same  is  a  great  obstruction  to  navigation, 
and  is  a  nuisance  and  ought  to  be  al)ated. 

The  answer  further  states,  that  the  railroad  company  are 
the  owners  of  a  railroad  extending  from  Phillipsburg  to 
Elizabethtown  Point,  in  the  construction  of  which  about  six 
millions  of  dollars  have  been  expended.  That  it  is  one  of 
the  main  avenues  for  the  transportation  of  coal  from  the 
mines  of  Pennsylvania,  and  of  other  merchandise  to  New 
York,  and  also  one  of  the  main  avenues  of  trade  between 
New  Ycrk,  and  the  south  and  west.  That,  by  a  sup[)lement 
to  their  charter,  they  are  authorized  to  extend  their  road 
from  Elizabeth  City  to  New  York  Bay,  at  some  [)()int  at  or 
south  of  Jersey  City,  and  that,  for  the  [)urpose  of  making 
such  extension,  they  have  purchased  the  right  of  wav  across 
the  main  land,  and  have  also  [)urchased,  to  a  large  extent,  the 
rights  of  shore  owners  upon  Communipaw  bay.  That,  hav- 
ing filed  a  survey  of  their  route,  they  commenced  nearly  a 
year  ago  to  bridge  Newark  bay,  and  that  they  have  expended 
a  very  large  sum  of  money  upon  their  extension.  That  in 
the  purchase  of  the  rights  of  the  shore  owners  upon  Com- 
muni|)aw  bay  alone,  they  have  ex[)ended  the  sum  of  one  hun- 
dred and  eighty  thousand  dollars.  And  that  the  temporary 
injunction  granted  in  this  cause  has  already  most  injuriously 
interrupted  their  business  operations,  and  interfered  with 
and  deranged  their  contracts  with  other  companies,  and  with 
persons  who  had   undertaken    the  construction   of  their  road. 

The  answer  admits  that  the  defendants  intend  to  construct 
a  solid  embankment  in  the  waters  of  Communipaw  bay, 
and  insists  that,  under  the  supplement  to  their  charter  au- 
thorizing the  extension  of  their  read,  they  have  the  right  to 
do  so.  They  insist  that  the  basin  of  the  complainants,  being 
a  nuisance,  ought  to  be  abated,  and  that,  if  the  cril)-\vork 
which  forms  the  enclosure  is  removed,  there  will  be  a  free 
and  open  navigation  from  Communipaw  bay  to  the  Hudson 
river. 

The  charges  in  the  bill  of  a  design  to  speculate  are  denied, 
both  by  the  company  and  by  John  Taylor  Johnston,  their 


OCTOBER  TERM,  1863.  425 

Morris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  et  al. 

president,  who  joined  in  their  answer.  The  charges  of  com- 
bination with  the  Mayor  and  Common  Council  of  Jersey  City 
are  also  denied. 

The  Mayor  and  Common  Council  hav^e  also  filed  an  answer, 
denying  the  combination  between  them  and  the  railroad  com- 
pany, charged  in  the  bill. 

Upon  the  filing  of  the  bill,  an  order  was  made  that  the 
defendants  siiow  cause  why  an  injunction  should  not  issue, 
according  to  the  prayer  of  the  bill,  and  granting  a  tempo- 
rary injunction  in  the  meantime.  The  defendants  filed  their 
answers,  and,  under  an  order  made  for  the  purpose,  affida- 
vits were  taken  by  the  parties,  to  be  read  upon  the  argument 
of  the  rule  to  show  cause.  The  parties,  by  their  respective 
pleadings  and  the  affidavits  so  taken,  and  through  the  argu- 
ments of  counsel,  have  had  full  opportunity  to  lay  their 
rights  and  claims  before  the  court.  Upon  the  matters  thus 
presented,  the  question,  whether  a  permanent  injunction 
should  be  granted  against  the  defendants,  or  not,  is  now  to 
be  considered  and  decided. 

In  order  to  entitle  the  complainants  to  the  injunction  which 
they  seek,  it  is  necessary  that  their  title  to  the  property  and 
rights  claimed  by  them,  and  for  the  protection  of  which  they 
ask  the  interposition  of  this  court,  should  be  made  to  appear 
iu  a  clear  and  satisfactory  manner.  This  is  an  established 
rule  in  apjjlications  of  this  nature. 

In  the  case  of  Outcalt  v.  Disborough,  2  Greenes  Ch.  R. 
216-17,  Chancellor  Vroom  says:  "It  is  a  general  rule  that 
the  party  seeking  to  be  protected  in  the  possession  or  enjoy- 
ment of  real  property,  must  show  a  right,  and  it  must  be 
such  a  right  as  the  court  will  feel  bound  to  protect,  upon  his 
own  showing,  against  the  act  of  the  defendant."  And  he  cites 
Field  v.  Jackson,  2  Dick.  599,  and  Whitelegg  v.  Whitelegg,  1 
Bro.  C.  C.  57,  in  support  of  this  doctrine.  I  refer  further  upon 
this  point  to  Storm  v.  3Iann,  4  Johns.  Ch.  R.  21 ;  Nevitt  v. 
Gillespie,  1  Howard  [Mississipj^i)  R.  113  ;  Price  v.  Mdhodisi 
Church,  4  Hammond  547  ;  Davis  v.  Leo,  6  Ycsey  78-1-7 ; 


426  CASES  IN  CHANCERr. 


Morris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  et  f>l. 

SmWi  V.  CoUi/er,  8   Vesei/  89  ;  Mayor  of  Jersey  City  v.  Mor- 
ris Canal  and  Bankinr/  Co.,  1  Beas.  551. 

The  large  basin  des!;cril)ecl  iti  the  bill,  is  an  important  part 
of  the  projierty  claimed  by  the  com[)lainants,  and  I  will  con- 
sider first  the  questions  arising  upon  this  part  of  the  case. 

This  basin  is  constructed  in  the  navigable  waters  of  the 
Hudson  river  and  Communipaw  bay,  and  is  wholly  below 
low  water  mark.  It  was  built  by  the  comphvinants  between 
the  month  of  October,  1859,  and  the  month  of  October,  1860, 
as  stated  in  their  bill.  They  also  state  that  they  constructed 
it  under  the  titles  acquired  in  the  manner  set  fortli  in  the 
bill,  and  "  under  the  powers  given  by  their  charter,  and  the 
supt)leinents  thereto,  and  under  the  express  authority  given 
by  the  Associates  of  the  Jersey  Company,  and  lawfully  trans- 
ferred to  the  complainants." 

Let  us,  then,  inquire  what  are  the  powers  given  by  the 
complainants'  charter  and  the  supplements  thereto,  for  this 
j)urjK)se.  By  the  fifth  section  of  the  charter,  they  are  au- 
thorized to  construct  a  canal  or  artificial  navitration  to  con- 
neet  the  waters  of  the  Delaware  with  the  waters  of  the  Pas- 
saic, "  with  all  the  locks,  works,  devices,  wharves,  toll  houses, 
and  offices,  necessary  for  the  use  of  the  said  canal."  And 
also  by  themselves  and  their  agents  to  enter  u[)on  and  sur- 
vey all  lands,  for  the  purpose  of  surveying  the  route  of  their 
canal,  and  locating  the  several  works  above  specified.  And 
it  is  declared  by  the  same  section,  that  when  the  said  route 
"shall  have  been  fixed  ujion,  and  its  several  works  located 
by  the  president  and  directors,  or  a  majority  of  them,  and  a 
survey  thereof  dej)ositcd  in  the  office  of  the  secretary  of  state, 
then  it  may  be  lawful  for  them  and  for  any  agent,  superin- 
tendent, engineer,  contractor,  or  any  person  or  })ersons  em- 
ployed in  the  service  of  said  corporation,  at  any  time  to  enter 
upon,  take  possession  of,  and  use  all  and  singular  such  lands, 
water,  and  streams,  subject  to  such  compensation  to  be  made 
therefor,  as  is  hereafter  directed." 

The  supplement  of  the  28th  January,  1828,  authorizes  the 
company  to  extend  their  canal  to  the  Hudson^  but  does  not 


OCTOBER  TERM,  1863.  427 

Morris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  et  al. 

give  any  further  powers  for  the  purposes  above  stated,  than 
those  mentioned  in  the  fifth  section  of  the  charter. 

It  is  stated  in  the  answer,  and  upon  tiie  argument  was  ad- 
mitted by  the  coiDplainant's  counsel,  that  no  survey  of  the 
])lace  where  tne  basin  is  constructed  was  ever  made  or  de- 
posited in  the  office  of  the  secretary  of  the  state,  in  conf  »rmity 
with  the  requirements  of  tiiis  section.  The  making  and 
filing  of  such  survey  is  a  necessary  prerequisite  to  the  taking 
of  any  lands  under  the  powers  given  by  their  charter.  Bo- 
naparte V.  Camden  and  Amboy  R.  R.  Co.,  Baldwin's  R. 
205 ;  Doughty  v.  Somcrville  and  Eadon  R.  R.  Co.,  1  Zab. 
442. 

I  did  not  understand  the  complainant's  counsel  to  deny 
the  correctness  of  this  position.  The  complainants,  there- 
fore, not  having  filed  the  required  survey,  could  not  lawfully 
construct  his  basin  by  virtue  of  their  charter,  if  they  acted 
under  that   alone,  and   without  further  authority  and   right. 

But  they  insist  that  they  had  further  authority  and  right. 
They  say  that  docks  or  basins  are  comprised  in  the  "  works 
and  devices"  wliich,  by  their  charter,  they  are  authorized  to 
make,  and  that  uixler  and  by  virtue  of  the  conveyances  from 
"  The  Associates  of  the  Jersey  Company,"  set  forth  in  their 
bill,  they,  the  complainants,  became  the  owners  in  fee  of  the 
lauds  under  water,  now  occupied  and  enclosed  by  this  basin  ; 
or  that,  if  said  conveyances  did  not  convey  the  fee  in  said 
lands,  they  transferred  to  the  complainants  a  right  and  au- 
thority to  construct  docks,  wharves,  and  j)iers,  in  said  waters, 
and  that,  by  virtue  of  the  title  or  right  so  derived  from  the 
associates,  in  connection  with  the  powers  given  by  their  char- 
ter, as  aforesaid,  they  had  full  power  to  construct  said  basin, 
and  appropriate  it  to  their  own  use.  The  title  or  right  which 
it  is  contended  the  Associates  thus  transferred  to  the  com- 
plainants, it  is  insisted  the  Associates  had  and  held,  under  and 
by  virtue  of  their  charter.  They  were  incorporated  by  an 
act  of  the  legislature,  passed  10th  November,  1804.  It  will 
be  necessary,  therefore,  now  to  examine  that  statute,  in  o>'dor 
to  see  what  rights  it  gave  to  the  Associates. 


428  CASES  IN  CHANCERY. 

Morris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  et  al. 

"It  is  an  established  rule  in  the  exposition  of  statutes/' 
says  Chancellor  Kent,  '' tiiat  the  intention  of  the  legislature 
is  to  be  derived  from  a  view  of  the  whole,  and  of  every  part 
of  a  statute,  taken  and  compared  together.  The  real  inten- 
tion, when  ascertained,  will  prevail  over  the  literal  sense  of 
terms.  *  *  *  *  When  words  are  not  explicit,  the  in- 
tention is  to  be  collected  from  the  context,  from  the  occasion 
and  necessity  of  tiie  law,  from  the  mischief  felt,  and  the 
remedy  in  view  ;  and  tiie  intention  is  to  betaken  or  presumed 
according  to  what  is  consonant  to  reason  and  good  discre- 
tion."    1  KruVs  Com.  461-2. 

Chief  Ju.stice  jNlarsliall,  in  speaking  of  the  proper  means 
of  arriving-  at  the  true  meaning  of  a  statute,  says:  "  Where 
the  mind  labors  to  discover  the  design  of  the  legislature,  it 
seizes  everything  from  whicii  aid  can  be  derived,  and  in  such 
case,  the  title  claims  a  degree  of  notice,  and  will  have  its  due 
share  of  consideration."  United  States  v.  Fisher,  2  Cranch 
386. 

The  title  of  this  act  is  "  an  act  to  incorporate  the  Associates 
of  the  Jersey  Company." 

In  the  preamble  it  is  set  forth,  that  it  has  been  represented 
to  the  legislature,  that  Richard  Varick  and  others  have  be- 
come proprietors,  by  ])urchase  from  Cornelius  Van  Vorst,  of 
a  certain  tract  of  land  and  premises  therein  described,  called 
Powles'  Hook,  with  a  ferry  right,  and  that  they  had  divided 
it  into  one  thousand  shares,  and  that  they  had,  by  agreement, 
associated  and  become  associates  with  divers  other  persons 
in  said  shares,  and  that  said  associates  had- petitioned  the 
legislature  for  an  act  of  incorporation. 

By  the  first  section,  the  said  Richard  Varick,  and  the  said 
other  persons  interested  with  him  in  said  shares,  are  consti- 
tuted a  body  corporate,  with  powers  to  sue,  &c.,  and  are  de- 
clared to  be  capable,  by  their  corporate  name,  to  have  and 
bold  lands,  tenements,  and  hereditaments.  But  it  is  expressly 
provided  and  declared,  in  and  by  said  section,  that  the  lands, 
tenements,  and  hereditaments  which  it  should  be  lawful  for 
the  said  corporation  to  hold,  should  only  be  the  said  tract  of 


OCTOBER  TERM,  1863.  429 

Morris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  et  al. 

land  and  premises,  with  the  privileges  and  appurtenances  in 
said  act  before  described,  and  sucli  other  lands  as  they  might 
take  in  payment  or  security  ft)r  debts. 

The  second  section  gives  the  said  corporation  "  power  to 
lay  out  streets  and  squares  on  said  tract,  and  to  establish 
such  as  had  already  been  laid  out,  and  to  regulate  the  same, 
and  to  direct  and  govern  the  leveling,  pitching,  and  construct- 
ing of  the  said  streets,  and  the  raising  and  leveling  of  all  lots 
and  grounds  for  buildings,  as  well  jjublic  as  j)rivate,  and  to 
order  and  regulate  the  building  of  all  docks,  jiiers,  and 
wharves,  and  all  store-houses  and  buildings  thereon,  and  to 
make  by-laws,  ordinances,  and  regulations,  touching  all  the 
said  matters,  and  to  enforce  the  same  by  penalty."  But  the 
powers  conferred  by  this  section.  It  is  declared,  shall  cease 
whenever  the  legislature  shall  institute  another  corporation 
for  those  purposes. 

The  third  section  enacts  as  follows :  "  That  the  said  As- 
sociates shall  have  the  privilege  of  erecting  or  building  any 
docks,  wharves,  and  jiiers,  opposite  to  and  adjoining  the  said 
premises  in  Hudson  river  and  the  bays  thereof,  as  far  as  they 
may  deem  it  necessary  for  the  improvement  of  the  said  premi- 
ses, or  the  benefit  of  commerce,  and  to  appropriate  the  same 
to  their  own  use." 

The  eighth  section  directs  that  the  clerk  of  Bergen  county 
shall  appoint  a  deputy,  who  shall  be  sworn  as  such,  and 
reside  and  keep  an  office  within  the  district  of  country  for- 
merly known  by  the  name  of  the  Island  of  Tlursimus,  and 
■which  includes  Powles'  Hook,  who  shall  keep  proper  books 
for  the  recording  of  all  deeds,  mortgages,  and  writings  which 
might  thereafter  be  made  or  executed,  relating  to  real  estate 
within  said  district. 

The  tenth  section  declares  that  all  sales  at  auction,  to  be 
made  at  Powles'  Hook  and  the  said  island  of  Hnrsimus,  shall 
be  free  from  any  duty  imposed  by  this  state,  fur  the  period  of 
fourteen  years  from  the  passing  of  said  act.  These  are  the 
parts  of  the  act  which  relate  more  particularly  to  the  object 
of  our  present  inquiry. 

Vol.  I.  2d 


430  CASES  IN  CHANCERY. 

Morris  Canal  and  Banking  Co.  v.  Central  Kailroad  Co.  et  al. 

We  see,  therefore,  from  these  provisions,  that  the  persona 
named  in  the  act  are  incor])orated  by  it,  and  that  the  tract 
of  land  and  premises,  to  wit,  Powles'  Hook,  wliich  they  before 
held  and  owned  as  individuals,  they  are  made  capable  of 
holding  and  owning  as  a  body  corporate;  and  that  they  are 
not  permitted  to  hokl  any  other  lands,  except  such  as  they 
might  take  in  payment  or  security  for  debts  ;  and  that  they 
are  empowered  to  exercise,  for  a  limited  time  only,  the 
municipal  jwwers  mentioned  in  the  second  section.  We  see, 
also,  that  certain  privileges  and  benefits  are,  by  the  eighth 
and  tenth  sections,  secured  to  the  inhabitants  of  Powles'  Hook, 
and  are  extended  to  their  neighbors  upon  other  parts  of  the 
island  of  Harsimus. 

The  object  and  intention  of  the  legislature  in  passing  this 
act,  so  far  as  they  can  be  gathered  from  the  act  itself,  seem 
to  have  been  to  enable  the  corporation  thereby  created,  to 
lay  out  and  improve  the  said  tract  known  as  Powles'  Hook, 
and  prepare  the  same  for  settlement  as  a  town  or  city,  and 
to  invite  and  encourage  persons  to  settle  and  build  there. 
And  the  powers  granted  seem  to  be  limited  so  as  to  apply 
to  that  place  only,  and  to  be  used  for  that  purpose  and  no 
other.  The  corporation  is  authorized  to  hold  that  tract,  and 
no  other  land,  save  such  as  they  might  take  in  payment  or 
security  for  debts.  The  powers  granted  by  the  second  sec- 
tion are  to  be  exercised  in  and  over  that  place,  and  no  other, 
and  are  to  cease  upon  the  happening  of  the  event  named. 
The  privilege  granted  by  the  third  section,  to  build  docks, 
wharves,  and  piers  in  the  waters  there  named,  specifies  that 
they  may  be  built  as  far  out  as  the  said  Associates  may 
deem  necessary  for  the  improvement  of  said  premises,  or  the 
benefit  of  commerce.  The  object  and  intention  of  the  legis- 
lature, as  thus  understood,  in  passing  this  act,  should  be 
borne  in  mind  and  have  their  due  influence,  in  examining 
the  different  parts  of  the  act  to  ascertain  their  true  meaning. 

It  is  insisted  by  the  complainants,  that  by  the  third  sec- 
tion, the  fee  simple  in  all  the  lands  under  water  in  Hudson 
river,  Communipaw  bay,  and  Harsimus  bay,  opposite  to  and 


OCTOBER  TERM,  18G3.  431 

Morris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  et  al. 

adjoining  Powles'  Hook,  as  far  out  as  the  right  of  the  state 
extended,  was  granted  to  the  Associates,  or  that  the  riglit  to 
build  docks,  wharves,  and  piers  in  the  waters  of  said  river 
and  bays  was  thereby  granted,  and  that  sucii  right  was  an 
incorporeal  hereditament  in  gross,  and  that  the  Associates 
had  a  right  to  convey,  and  did  convey  such  fee  simple  or 
right  to  the  complainants. 

On  the  part  of  the  defendants,  it  is  insisted  that  the  priv- 
ilege granted  by  the  said  third  section  to  the  Associates,  was 
only  a  privilege  or  license  to  build  said  docks,  wharves,  and 
piers,  and  appropriate  them  to  their  own  use,  and  that  they 
could  not  convey  or  transfer  the  said  privilege  to  the  com- 
plainants or  tQ  any  other  corporation. 

AVhen  we  take  into  consideration  the  extent  and  value  of 
those  lands  under  water,  their  situation  in  relation  to  our 
own  state  and  to  the  city  of  New  York,  with  its  extensive 
and  valuable  trade  and  commerce,  and  forming,  as  those 
waters  do,  an  important  part  of  the  harbor  of  New  York, 
the  best,  not  only  in  this  country,  but  upon  this  continent,  it 
is  most  reasonable  to  conclude  that,  if  the  legislature  intended 
to  grant  and  convey  the  fee  in  said  lands,  or  such  right  over 
them  as  is  contended  for  by  the  complainants,  that  their  io- 
tention  would  be  made  plainly  to  appear,  and  that  the  grant 
itself  would  be  made  itf  clear,  direct,  and  explicit  terras. 

What  has  been  done  in  other  cases  of  grant  of  lands  by 
legislative  act  in  tliis  state  ? 

It  is  said  by  Judge  Elmer,  in  the  case  of  Bell  v.  Gough,  3 
Zab.  667,  that  "but  three  cases  of  distinct  grants  of  land 
covered  with  water,  or  of  the  siiore,  by  the  legislature,  are  to 
be  found  in  our  statute  books,''  referring  to  the  grant  of  the 
Pea  Patch  to  Henry  Gale,  by  the  act  of  24th  November, 
1831,  Pamph.  L.  15;  the  grant  to  Nathaniel  Budd,  by  act 
of  8th  November,  1836,  Pamph.  L.  13;  and  the  grant  to 
Aaron  Ogden,  by  act  of  25th  January,  1837,  Pamph.  L.  64. 

In  the  Pea  Patch  grant,  the  language  of  the  act  is,  that 
"all  the  right  and  title  of  the  said  state  of  New  Jersey  to  the 
said  island  called  the  Pea  Patch,  with  all  and   singular  the 


432  CASES  IN  CHANCERY. 

Morris  Canal  and  Banking  Co.  v.  Central  Eailroad  Co.  et  al. 

appurtenances,  be  and  the  same  are  hereby  granted  and  con- 
veyed to  the  said  Henry  Galo,  his  heirs  and  assigns  forever; 
and  that  the  same  shall  forever  hereafter  be  vested  in  the  said 
Henry  Gale,  his  heirs  and  assigns,  in  as  full  and  ample  a 
manner  as  the  state  of  New  Jersey  hath  right  and  title  to 
grant  the  same,"  reserving,  however,  the  state's  right  of 
jurisdiction  and  sovereignty.  The  language  in  the  grant  to 
Budd  is  the  same,  and  in  that  to  Ogden  is  equally  clear. 

The  language  Hsed  in  these  three  acts,  leaves  no  doubt  in 
regard  to  the  intention  of  the  legislature,  or  the  nature  and 
extent  of  the  estate  granted.  Compare  this  with  the  lan- 
guage of  the  third  section  of  the  charter  of  the  Associates. 
The  difference  is  striking.  The  grant  of  the  Pea  Patch 
declares  that  "  all  the  right  and  title  "  of  the  state  to  the  same, 
"  are  hereby  granted  and  conveyed  to  the  said  Henry  Gale, 
his  heirs  and  assigns  Jorcver,  and  that  the  same  shall  forever 
hereafter  he  vested  in  the  said  Henry  Gale,  his  heirs  and  as- 
rigns,"  &c. 

The  third  section  of  the  Associates'  charter  declares  that 
"they  shall  have  the  privilege  to  build  docks,  wharves,  and 
piers,"  &c.,  and  "  to  appropriate  the  same  to  their  own  use." 
The  words  "grant,"  "convey,"  "right,"  "title,"  "estate," 
are  none  of  them  found  in  it.  Not  only  is  the  language  of 
this  third  section  different  from  that  used  in  those  grants, 
but  it  is  also  wholly  unlike  that  uniformly  used  in  a  deed  in- 
tended to  convey  a  fee  simple,  or  such  right  as  the  complain- 
ants are  contending  for.  No  discreet  conveyancer  would  use 
auch  language  in  such  a  deed.  It  would  not  be  deemed 
either  apt  or  adequate  for  the  purpose.  And  when  a  grant 
of  an  estate  in  fee,  in  lands  so  extensive  and  valuable,  or  a 
grant  of  so  important  a  right  over  them  as  is  argued  for  by 
the  complainants,  is  intended  to  be  made  by  the  state,  by 
means  of  an  act  of  the  legislature,  passed  with  all  the  for- 
malities and  deliberation  attendant  upon  legislation,  is  it  not 
reasonable  to  suppose  that  they  would  employ  language  at 
least  as  plain,  explicit,  and  direct,  as  that  which  is  deemed 


OCTOBER  TERM,  1863.  433 

Morris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  et  al. 

appropriate  and   necessary  in  an  ordinary  deed  between   in- 
dividuals ? 

Again  :  This  third  section  declares  that  the  Associates 
shall  have  the  privilege  of  building  docks,  wliarves,  and 
piers  in  those  waters,  and  to  appropriate  the  same,  that  is, 
the  docks,  wharves,  and  piers,  to  their  own  use.  Can  this 
properly  be  said  to  grant  all  those  lands  under  water  upon 
which  the  Associates  did  not  build  any  dock,  wharf,  or  pier? 
If  it  was  intended  by  the  legislature  to  grant  ilie  lohole  of 
those  lands,  or  a  right  for  ever  over  the  tohole  of  them,  whether 
so  built  upon  or  not,  why  was  this  section  so  framed  and  ex- 
pressed as  to  declare  in  effect,  that  when  they  built  a  dock, 
wharf,  or  pier  upon  any  particular  pari  or  portion,  they 
might  appropriate  the  .same  to  their  own  use?  Is  the  giv- 
ing of  a  privilege  to  occupy  and  build  upon,  and  then  to 
appropriate  a  part  of  certain  lands,  a  grant  or  conveyance  of 
i\\Q  whole  of  those  lands?  Does  not  this  section,  by  giving 
to  the  Associates  a  privilege  of  building  and  appropriating 
to  their  own  use,  docks,  wharves,  and  piers,  which  must  of 
necessity  be  built  upon  parts  and  portions  of  those  lanck 
under  water,  selected  from  time  to  time,  exclude  the  idea 
that  the  legislature  meant  to  grant  the  whole  of  said  lands  ? 
Is  it  not  really  an  indirect  declaration,  that  the  land  not  so 
occupied  and  built  upon  was  not  granted,  and  that  the  same, 
and  all  right  in  it,  and  over  it,  remained  in  the  state  as 
before  ? 

Would  such  construction  of  this  section  as  is  contended 
for  by  the  complainants,  be  in  accordance  with  the  intention 
of  the  legislature  in  passing  this  act,  or  in  harmony  with  the 
other  parts  of  the  act?  It  seems  to  have  been  intended  to 
restrict  the  powers  of  the  Associates  within  narrow  limits. 
They  are  incorporated  by  the  first  section,  and  enabled  to 
hold  lauds,  &c.  The  powers  given  by  the  second  section 
were  to  last  but  for  a  time,  and  when  they  ceased,  little  else 
but  the  power  to  hold  Powles'  Hook  and  improve  it,  re- 
mained in  the  Associates!,  excei)t  what  is  given  by  the  third 
section.     The  first  section,  moreover,  expressly  provides  that 


434  CASES  IN  CHANCERY. 

Morris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  et  al. 

the  lands,  tenements,  and  hereditaments  which  they  shoidd  be 
capable  of  holding,  should  be  only  those  therein  before  de- 
scribed. Would  the  legislature,  after  thus  restricting  the 
powers  of  this  corporation,  and  after  expressly  declai'ing  that 
they  should  not  be  capable  of  holding  any  other  lands,  tene- 
ments, or  hereditaments  than  those  mentioned  in  the  first 
section,  proceed  at  once  in  the  third  section  to  grant  to  them 
those  extensive  and  valuable  lands  under  water  in  fee  simple, 
or  such  incorporeal  hereditament  in  or  over  them  as  is  con- 
tended for  by  the  complainants?  The  two  sections  as  tiius 
construed  woidd  conflict  with  each  other. 

Again  :  The  privilege  given  by  the  third  section  to  the 
Associates,  is  to  build  docks,  &c.,  in  those  waters,  as  far  out 
as  they  may  deem  necessary  for  the  improvement  of  the  said 
premises,  or  the  benefit  of  commerce.  Here  it  is  left  to  them 
to  judge  and  decide  in  this  matter.  They  were  the  owners 
of  Powles'  Hook,  and  as  such  were  incoiporated  with  pow- 
ers to  hold  and  improve  it,  with  the  view  of  building  up  a 
town.  And  as  they,  as  a  corporation,  were  to  own  no  other 
lands,  and  could  have  no  object  or  interest  different  from 
this,  such  right  to  build  docks,  wharves,  and  piers,  might 
safely  be  vested  in  them,  to  be  used  according  to  their  judg- 
ment They  could  have  no  motive  to  use  this  privilege  for 
any  other  purpose,  and  it  was  granted  to  them  in  further- 
ance of  the  object  and  intent  of  the  act.  But  if  the  right 
or  privilege  granted  by  this  section,  were  such  as  is  con- 
tended for  by  the  com{)lainants,  the  Associates  might  not  only 
use  it  themselves,  but  migiit  sell  antl  convey  it  away,  or  it 
might  be  sold  against  their  will,  by  virtue  of  judgment  and 
execution  against  them,  and  might  tlius  pass  into  the  hands 
of  unfriendly  individuals,  or  of  a  corporation  created  for 
other  purposes,  and  having  interests  in  conflict  with,  or  hos- 
tile to  the  interests  of  the  community  or  town  of  Powles' 
Hook.  And  thus  what  was  granted  by  the  legislature  for 
their  benefit,  might  be  used  for  their  injury  or  destruction. 
The  legislature  might  well  be  willing  to  grant  such  a  pri- 
vilege to  the  Associates   in  such   manner  as  to  be  used  by 


OCTOBER  TERM,  1863.  435 

Morris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  et  al. 

them  and  according  to  their  judgment,  for  the  building  up  of 
Powles'  Hook  and  the  encouragement  of  its  trade  and  com- 
merce, but  unwilling  to  grant  them  an  estate  or  right  which 
might  pass  into  other  hands,  and  be  used  for  very  different 
and  perhaps  contrary  purposes. 

Moreover,  the  provisions  of  this  third  section  seera  not  to 
be  the  main  purpose  of  the  act,  but  merely  auxiliary  thereto. 
I  think  it  is  right,  as  a  rule  of  construction,  to  consider  the 
legislature  as  intending  by  this  section  to  grant  such  powers 
as  were  necessary  or  useful  to  the  end  or  object  which  they 
had  in  view  in  creating  this  corporation,  and  that  they  ought 
not  to  be  understood  as  giving  or  granting  anything  more, 
unless  their  intention  to  do  so  is  declared  or  made  known  in 
the  plainest  terms,  leaving  no  possible  room  for  doubt.  Here, 
if  the  third  section  is  construed  to  give  to  the  Associates  only 
a  privilege  or  license  to  build  docks,  <S:c.,  to  be  exefcised  by 
themselves,  and  not  transferable,  it  gives  all  that  is  neces- 
sary or  useful  in  that  respect,  to  enable  the  corporation  to 
accomplish  the  ends  for  which  it  was  created.  But  if  it  is 
construed  to  grant  a  fee,  or  such  right  as  the  com[)lainants 
contend  for,  it  grants  more  than  is  necessary  or  useful  for 
that  purpose.  We  must  therefore  conclude  that  they  did  not 
intend  to  grant  so  much,  since  the  language  used  cannot  be 
said  to  have,  beyond  all  doubt  and  controversy,  the  meaning 
contended  for  by  the  complainants.  If  the  Associates  had, 
by  that  section,  a  privilege  or  license  to  build,  cSsc,  to  be  used 
and  exercised  by  themselves,  they  could  build  docks,  wharves, 
and  piers,  as  far  out  as  they  might  deem  necessary  for  the 
improvement  of  Powles'  Hook,  or  the  benefit  of  commerce. 
If  they  had  a  fee  in  the  lands,  or  a  right  over  all  of  them, 
capable  of  being  transferred  and  conveyed  away,  they  could 
do  no  more,  except  that  they  might  sell  such  estate  or  right, 
which,  so  far  from  being  a  benefit  to  Powles'  Hook,  might  be 
the  means  of  great  injury  and  mischief. 

Again,  look  at  the  title  of  this  act.  It  is  "  an  act  to  in- 
corporate the  Associates  of  the  Jersey  Company."  In  this, 
brief  and  simple  as  it  is,  we  find  nothing  to  indicate  that  the 


436  CASES  IN  CHANCERY. 

Morris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  et  al. 

legislature  intended  to  grant  any  great  or  unusual  rights  or 
powers. 

But  if,  notwithstanding  the  considerations  already  men- 
tioned, the  meaning  of  this  third  section  should  still  seem  to 
be  doubtful,  there  are  other  principles  which  may  assist  us  in 
arriving  at  a  correct  conclusion. 

It  is  a  well  settled  rule  of  construction  in  regard  to  a  pub- 
lic grant,  that  the  grantee  can  take  nothing  not  clearly  given 
him  by  the  grant.  In  cases  of  doubt,  tiie  grant  is  construed 
in  favor  of  the  state,  and  most  strongly  against  the  grantee. 
United  States  v.  Arrcdondo,  6  Peters  738-9 ;  Charles  River 
Bridge  v.  Warren  Bridge,  1 1  Peters  545  ;  State  v.  Bentley, 
3  Zah.  538  ;  Proprietors  of  Bridges,  &c.,  v.  Hoboken  Land 
and  Improvement  Co.,  2  Beas.  94  ;  Townsend  v.  Brown,  4 
Zab.  87. 

In  this  last  case,  Chief  Justice  Green  says  : 

"  Ifc  is  a  rule  of  construction,  no  less  wise  than  clear,  that 
in  all  cases  of  public  grants,  the  interpretation  shall  be  most 
favorable  to  the  public,  and  most  strongly  against  the  grantee. 
The  rule  is  founded  in  wisdom.  All  experience  teaches  that 
public  rights  are  yielded  to  private  interests  with  sufficient 
alacrity.  If  the  legislature  really  design  to  grant  to  indi- 
viduals the  right  of  several  fishery,  below  low  water  mark, 
it  is  easy  to  do  so  in  plain  and  express  terms.  It  is  far  bet- 
ter that  the  right  should  be  settled  by  legislative  interference, 
than  that  public  rights  should  be  frittered  away  by  the  aid 
of  judicial  construction." 

Ifc  was  further  said  by  the  counsel  for  the  complainants, 
that  the  construction  of  tiiis  third  section  had  been  settled  in 
their  favor  by  the  decisions  in  the  cases  of  Den  v.  Damvier, 
Spencer's  P.  86,  and  The  Associates  v.  Jersey  City,  4  HaJst. 
Vh.  P.  715,  in  which,  as  tliey  insist,  the  court  held  that  the 
Associates  owned  all  this  land  under  water,  opposite  to  and 
adjoining  Powles'  Hook,  to  the  middle  of  Hudson  river,  Com- 
rnunipaw  bay,  and  Harsimus  bay.  But  I  do  not  so  understand 
it.     It  was  not  necessary  for  the  court  to  decide  that  question 


OCTOBER  TERM,  1863.  437 


Morris  Canal  and  Banking  Co.  v.  Central  Eailroad  Co.  et  al. 

in  either  of  those  cases,  and  I  do   not  think  that  they  have 
done  so. 

I  atn  not  able  to  see,  either  from  the  language  of  the  third 
section  of  the  charter  of  tiie  Associates,  or  from  the  oIIut 
parts  of  the  act,  or  from  the  whole  act  taken  and  considered 
together,  and  the  object  and  intention  of  the  legislature  in 
passing  it,  that  that  section  has  the  meaning  and  effect  con- 
tended for  by  the  counsel  of  the  complainants.  I  am  of  . 
opinion  that  it  gives  to  the  Associates  merely  a  privilege  or 
license  to  build  docks,  wharves,  and  piers,  in  the  waters  of  the 
Hudson  river,  and  the  bays  aforesaid,  in  the  manner  there 
mentioned,  and  when  so  built,,  to  appropriate  them  to  their 
own  use;  and  that  the  Associates  could  not  transfer  or  con- 
vey such  privilege  or  license  to  any  other  corporation. 

The  complainants'  counsel  upon  the  argument,  claimed  fur- 
ther, however,  that  they  had  a  right,  as  riparian  owners,  to 
construct  this  basin.  I  do  not  perceive  that  this  is  so.  South 
street,  one  of  the  streets  laid  down  upoti  Mangin's  map,  a 
map  made  or  adopted  by  the  Associates,  and  which  street  is 
one  hundred  feet  wide,  lies  immediately  north  of  the  basin, 
and  between  it  and  the  lands  of  the  complainants.  It  has 
been  decided  that  the  streets  upon  Mangin's  map  are  dedi- 
cated to  public  use,  and  that  though  the  fee  in  them  remained 
in  the  Associates,  it  was  nevertheless  subject  to  the  public 
easement  created  by  such  dedication.  Den  v.  Dnmmer, 
Speyicer's  R.  86 ;  Mayor,  &c.,  of  Jersey  City  v.  Morris  Canal 
and  Banking  Co.,  1  Beas.  547. 

The  complainants'  counsel  seemed  to  attach  some  import- 
tance  to  the  fact,  that  a  portion  of  the  northerly  side  of  South 
street  is  occupied  by  the  pier  built  by  the  complainants  upon 
the  southerly  side  of  their  smaller  basin.  But  according  to 
the  decision  in  the  case  just  cited  from  1  Beas.  547,  the  com- 
plainants did  not  thereby  acquire  any  exclusive  right  to  the 
part  of  the  street  so  occupied.  It  still  remained  a  public 
street,  and  the  right  of  the  public,  and  of  all  persons  who 
were  before  entitled  to  use  it  as  such,  was  as  perfect  and  com- 
plete as  before. 


438  CASES  IN  CHANCERY. 

Morris  Canal  and  Banking  Co.  v.  Central  Eailroad  Co.  et  al. 

Even  if  the  Associates  had  conveyed  to  the  complainants 
all  their  right  and  title  in  South  street,  and  they  thereby  be- 
came in  law  riparian  owners,  yet  an  important  question  would 
still  remain  to  be  settled,  as  to  what  rights  belonged  to  them 
as  riparian  owners,  they  being  an  incorporated  company,  and 
having  only  limited  powers  under  their  charter.  That  ques- 
tion came  up  in  the  case  of  llie  State  v.  Brown,  3  Dutcher 
13,  and  the  Chief  Justice,  in  delivering  the  opinion  of  the 
court,  expressly  declined  giving  an  opinion  upon  it.  It  may 
therefore  be  considered  at  least  a  doubtful  point.  But  I  do 
not  find  that  South  street  ever  was  conveyed  to  the  complain- 
ants. It  is  not  included  in  the  bounds  or  description  of  tl:e 
deed  from  the  Associates,  dated  2iid  January,  1845,  or  that 
dated  loth  September,  1845,  as  tiie  same  are  stated  and  set 
forth  in  the  bill,  nor  in  any  other  conveyance  which  has  come 
to  my  notice. 

I  am  of  opinion  that  the  complainants  have  not  shown  any 
sufficient  authority  in  themselves  to  construct  the  said  basin, 
or  that  they  have  a  good  and  sufficient  title  thereto.  And 
that,  therefore,  this  court  upon  well  established  principles, 
which  regulate  its  practice  and  proceedings,  ought  not  to 
grant  an  injunction  to  protect  them  in  the  enjoyment  thereof. 

It  was  urged  by  the  counsel  for  the  complainants,  that  in 
case  the  comj)lainants'  title  should  not  be  made  out  to  the 
satisfaction  of  the  court,  that  the  temporary  injunction  should 
be  allowed  to  stand  until  that  question  could  be  tried  at  law. 
In  some  cases,  this  court  will  hesitate  to  decide  upon  a  ques- 
tion of  title  on  an  application  for  an  injunction.  But  the 
proper  course  to  be  pursued,  will  always  depend  much  upon 
the  circumstances  of  each  particular  case.  On  the  present 
application  the  title  claimed  by  the  complainants,  and  the 
grounds  upon  which  it  is  believed  by  them  to  rest,  have  all 
been  laid  before  the  court,  and  the  material  facts  in  regard 
to  it  are  not  disputed.  I  speak  now  of  their  claim  to  the 
basin. 

The  injunction  prayed  for  would  suspend  an  important 
work  of  a  public  nature,  and  do  a  great  and  daily  recurring 


OCTOBER  TERM,  1863.  439 

Morris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  et  al. 

injury  to  the  stockholders,  whose  capital  to  a  large  amount  is 
invested  in  it.  The  court  must  take  care,  when  called  upoa 
to  interpose  to  prevent  an  apprehended  injury  to  one  party,  not 
to  do  at  least  as  great  an  injury  to  the  other.  I  think  that, 
under  the  circumstances  of  this  case,  it  would  not  be  just  to 
tie  up  the  defendants  by  injunction,  until  the  question  of 
title  could  be  tried  at  law. 

The  other  rights  and  property  claimed  by  the  complain- 
ants, and  for  which  they  seek  protection  by  injunction,  are 
the  right  to  use  the  tide  waters  of  Mill  creek,  for  the  purpose 
of  feeding  their  canal  by  means  of  the  feeder  constructed 
there ;  also  the  right  to  use  the  creek  as  an  outlet  to  their 
canal,  and  the  right  of  navigating  the  waters  of  the  creek 
and  of  Communipaw  bay  ;  also,  the  rights  of  adjacency  to  the 
waters  of  said  bay,  where  said  waters  wash  the  bank  of  the 
canal ;  also,  the  right  of  riparian  owners  upon  the  shores  of 
said  bay,  and  the  right  of  passing  over  the  waters  thereof,  to 
and  from  their  canal,  and  of  loading  and  unloading  boats  on 
the  banks  thereof.  They  also  claim  to  own  lands  under 
water  between  Beach  and  Henderson  streets,  under  a  deed 
from  Cornelius  Van  Vorst.  But  their  title  to  those  lands  is 
denied  by  the  defendants,  and  no  deed  from  Van  Vorst  was 
produced,  nor  was  any  evidence  offered  in  regard  to  it.  The 
complainants'  counsel  say  that  there  has  been  such  a  deed,  but 
that  it  is  now  lost. 

The  canal  company  were,  by  their  charter,  authorized  to 
construct  their  canal  from  the  Delaware  to  the  Passaic.  By 
a  supplement  passed  twenty-eighth  January,  1828,  they  were 
empowered  to  extend  it  to  the  Hudson.  This  extension  was 
constructed  in  the  year  1836,  as  appears  by  the  bill,  and  it 
crosses  the  Hackensack  river  and  Mill  creek.  Mr.  Talcott,  who 
now  is,  and  since  the  spring  of  1846  has  been,  chief  engineer 
of  the  canal  company,  says,  that  when  he  first  took  charge  of 
the  canal,  the  structure  upon  wiiich  the  canal  had  before 
crossed  Mill  creek  was  washed  away.  That  afterwards  new 
fixtures  were  made  for  the  purpose,  under  his  superintendence 
and  direction,  and   in   describing   them,  he  says   that  "  they 


440  CASES  IN  CHANCERY. 

Morris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  et  al. 

consisted  of  a  plain  wooden  syphon  culvert,  with  an  embank- 
ment on  each  side  of  the  canal,  over  it,  entirely  excluding  the 
waters  of  JNIill  creek."  He  further  says,  that  they  got  the 
canal  in  navigable  order  in  1850,  and  that  the  through  trade 
commenced  in  1851,  though  some  light  boats  were  passed 
through  before.  There  was  no  feeder  at  Mill  creek  at  that 
time,  and  the  cayal  continued  to  be  used  without  any  feeder 
there  until  1854-5,  or  1855-6.  An  alteration  was  then 
made,  and  the  present  feeder  was  constructed  by  placing  a 
tide  gate  in  the  fixture  at  the  creek. 

It  is  not  expressly  stated,  but,  from  the  evidence,  I  think 
it  is  to  be  inferred  that  there  was  no  feeder  at  the  creek  in 
the  original  structure  there,  which  was  washed  away  before 
Mr.  Talcott  took  charge  of  the  works  in  1846.  It  appears 
that  though  the  company  after  that  date,  proceeded  to  put 
that  section  of  the  canal  in  order  for  trade  and  business,  and 
spent  large  sums  of  money  for  that  purpose  ;  and  though  a 
new  structure  was  then,  under  the  superintendence  of  their 
chief  engineer,  built  at  the  creek,  for  the  canal  to  cross  the  creek 
upon,  yet  that  it  v/as  so  built  as  entirely  to  exclude  the  waters 
of  the  creek  from  tlie  canal,  and  that  the  canal  continued  to 
be  used  without  any  feeder  there,  for  the  s|)ace  of  four  or  five 
years  from  that  time.  These  facts  in  the  history  of  the  canal 
are  some  evidence,  that  though  a  feeder  there  may  be  valu- 
able, it  has  not  always  been  deemed  indispensable  to  the  use 
and  operation  of  the  canal. 

The  canal  now  has  four  feeders  by  which  it  is  fed  from  the 
tide  waters,  to  wit,  one  at  Hackensack  river,  one  at  Fiddler's 
Elbow,  one  at  the  Hudson,  and  this  one  at  INIill  creek.  These 
four  feeders,  together  with  a  steam  pump  at  the  Hackensack, 
are  the  means  by  which  the  canal  is  now  supplied  with  water. 
This  pump  is  only  used  occasionally.  Whenever,  by  reason 
of  the  low  state  of  the  tides,  the  four  feeders  do  not  afford 
sufficient  water,  the  pump  is  used  to  make  up  the  deficiency, 
and  there  is  no  evidence  that  it  has  not  at  all  times  been 
found  sufficient  for  this  purpose. 

There  is  no  doubt  that  the  feeder  at  Mill  creek  is  a  valu- 


OCTOBER  TERM,  1863.  441 

iforris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  el  al. 

able  addition  to  the  complainants'  mean.s  of  supplying  their 
canal  with  water,  and  that  it  would  be  an  injury  to  them  to 
be  deprived  of  it.  But  I  do  not  think  that  it  couhl  properly 
be  considered  an  irreparable  injury.  The  past  history  of  the 
canal  shows  that  this  feeder  is  not  indis{)ensable.  There 
are  times  (always  recurring  when  neap  tides  prevail)  when 
this  feeder  does  not  sup{)ly  the  canal  with  any  water  at  all. 
On  such  occasions  the  ])ump  furnishes  all  that  is  needed,  in 
addition  to  what  may  come  in  at  the  other  feeders,  and  the 
navigation  of  the  canal  continues  without  interruption.  Any 
injury  which  might  be  done  to  this  feeder  by  the  operations 
of  the  defendants,  would  be  I  think  capable  of  compensation 
in  damages,  and  the  ability  of  the  defendants  to  respond  in 
that  way  is  not  questioned. 

The  complainants  claim  a  right  to  have  an  outlet  from 
their  canal  into  and  through  Mill  creek.  Yet  no  outlet  there 
was  ever  made  until  some  time  in  July  and  August  last,  and 
a  very  short  time  before  the  filing  of  their  bill  in  this  cause. 
It  was  then  made  in  a  very  imperfect  manner,  and  but  one 
boat,  and  that  an  empty  one,  Jias  ever  been  ])a.'^sed  through 
it.  The  com[)lainauts  themselves  do  not  appear  ever  to  have 
placed  much  value  upon  this  right. 

The  rights  of  adjacency  to  the  waters  of  Communipaw  bay 
where  the  same  wash  the  bank  of  their  canal,  the  right  of 
riparian  owners,  the  right  of  navigating  those  waters  and 
the  waters  of  Mill  creek,  and  the  right  to  the  lands  under 
water  between  Beach  and  Henderson  streets,  claimed  by  the 
complainants,  are  not  all  admitted  by  the  defendants,  and 
some  of  them  are  expressly  denied. 

But  if  it  be  conceded  that  all  these  rights"  belong  to  the 
complainants,  yet  I  cannot  think  that  the  injury  apprehended 
to  them  from  the  proceedings  of  the  defendants  can  be  pro- 
perly called  irreparable,  or  that  it  is  of  such  a  character  as  to 
call  for  the  interposition  of  this  court  by  injunction. 

The  water  along  the  canal  where  its  bank  is  washed  by 
the  waters  of  Communipaw  bay,  and  also  at  the  mouth  of 
Mill  creek,  is  shallow  at  ordinary  tides.     The  right  of  navi- 


442  CASES  IN  CHANCERY. 

Morris  Canal  and  Banking  Co.  v.  Central  Railroad  Co.  et  al. 

gating  those  waters  is  not  exclusively  in  the  complainants  ; 
they  can  claim  it  only  in  common  with  others.  It  does  not 
appear  that  the  complainants  have  ever  used  the  bank  of 
their  canal,  where  the  saibe  is  washed  by  the  waters  of  Com-" 
munipaw  bay,  for  the  loading  or  unloading  of  boats,  or  that 
they  expect  and  intend  to  do  so.  So  far  as  relates,  therefore, 
to  these  further  rights  claimed  by  the  complainants,  I  am  of 
opinion  that,  even  if  the  complainants  should  suffer  all  the 
injury  which  they  apprehended  from  the  proceedings  of  the 
defendants,  such  injury  could  be  fully  compensated  in  dam- 
ages, and  that  no  injunction  should  be  granted  in  regard  to 
them. 

I  may  here  adopt,  as  applicable  to  this  case,  the  language 
of  a  learned  judge,  and  say  :  "There  is  no  power,  the  exer- 
cise of  which  is  more  delicate,  which  requires  greater  cau- 
tion, deliberation,  and  sound  discretion,  or  which  is  more 
dangerous  in  a  doubtful  case,  than  the  issuing  of  an  injunc- 
tion. It  is  the  strong  arm  of  equity  that  never  ought  to  be 
extended  unless  to  cases  of  great  injury,  where  the  courts  of 
law  cannot  afford  an  adequate  or  commensurate  remedy  in 
damages.  The  right  must  be  clear,  and  the  injury  be  im- 
pending or  threatened,  so  as  to  be  averted  only  by  the  pro- 
tecting, preventive  process  of  injunction.  But  that  will  not 
be  awarded  in  doubtful  cases,  or  new  ones  not  coming  within 
well  established  principles;  for  if  it  issues  erroneously,  an  ir- 
reparable injury  is  inflicted,  for  which  there  can  be  no  redress, 
it  being  the  act  of  a  court,  and  not  of  the  party  who  prays 
for  it."  Bonaparte  v.  Camden  and  Amboy  R.  R.  Co.,  Bald- 
win's R.  217,  218. 

Other  questions,  interesting  in  themselves,  and  having  an 
important  bearing  upon  this  case  in  certain  of  its  aspects, 
were  presented,  and  most  ably  discussed  by  counsel  upon  the 
argument.  But  under  the  views  which  I  have  already  ex- 
pres.sed,  it  is  not  necessary  that  I  should  consider  or  decide 
them. 

I  aro.  of  opinion,  upon  the  whole  case,  that  the  motion  for 
a  permanent  injunction  should  be  denied,  and  the  temporary 


OCTOBER  TERM,  1863.  443 

Morris  Canal  and  Banking  Co.  v.  Matthieson  et  al. 

injunction  dissolved  as  against  all  the  defendants,  with  costs, 
and  I  do  respectfully  advise  the  Chancellor  to  make  au  order 
accord  in  y-lv. 


The  Morris  Canal  and  Banking  Company  vs.  Francis 
O.  Matthieson  and  others. 

Same  Complainants  vs.  Francis  O.  Matthieson  and 
Joseph  H.  Gautier  and  others. 

Upon  filing  the  bill  an  injunction  issued  pursuant  to  the 
prayer  thereof.  The  defendants  having  answered,  now  move 
to  dissolve  the  injunction.  The  cause  was  heard  before  James 
Wilson,  esquire,  one  of  the  masters  of  the  court,  upon  the  bill 
and  answer. 

GUclirid  and  Bradley,  for  the  defendants,  in  support  of 
the  motion. 

/.   W.  Scaddcr  and  ZabrisJcie,  for  the  complainants,  contra. 

The  Master.  The  bill  in  each  of  these  cases,  sets  forth 
that  the  complainants  have  constructed,  under  a  certain 
right  and  title  therein  stated,  a  basin  in  the  waters  of  Com- 
muuipaw  bay  and  Hudson  river,  by  sinking  crib-work  filled 
with  stones,  and  that  the  crib-work  forming  the  southerly 
side  of  said  basin,  was  extended,  westwardly  outside  of  said 
basin,  about  134  feet;  and  that  in  May  last,  in  order  to 
construct  a  dock  or  pier  there,  to  accommodate  the  business 
of  their  canal,  they  extended  said  crib-work  about  250  feet 
further  westwardly,  making  in  all  about  384  feet  of  crib- 
work  from  the  southwesterly  corner  of  the  basin.  The  bill 
charges  that  the  defendants  were  engaged  in  taking  up  and 
destroying  said  crib-work,  and  threatened  to  destroy  the 
basin,  and  that  thereby  an  irreparable  injury  will  be  done  to 


444  CASES  IN  CHANCERY. 

Morris  Canal  and  Banking  Co.  v.  Matthieson  et  al. 

the  complainants.  The  bill  prayed  for  an  injunction  to  stay 
the  proceedings  of  the  defendants,  which  was  granted. 

The  defendants  have  answered  the  bill,  setting  forth  that 
they  own  valuable  lands  and  real  estate  in  Jersey  City,  and 
upon  the  shores  of  Comraunipaw  bay,  and  that  they  are  en- 
titled to  the  rights  of  adjacency,  the  rights  of  riparian  own- 
ers, and  the  rights  of  navigating  tiie  waters  of  said  baj"^  and 
Hudson  river;  and  that  their  business  which  is  carried  on 
upon  said  lands,  and  is  large  and  valuable,  makes  it  neces- 
sary for  them  to  pass  frequently  with  vessels  across  said 
waters,  to  and  from  New  York.  They  deny  the  riglit  of  the 
complainants  to  construct  said  basin  and  crib-work,  and 
allege  that  they  are  public  nuisances,  and  also  that  they 
work  especial  injury  to  their  business.  They  admit  that 
they  were  engaged  in  taking  up  said  crib-work,  and  insist 
that  they  had  a  right  to  do  so,  but  deny  that  they  did  any 
injury  to  the  basin.  The  defendants  now  move  to  dissolve 
the  injunction. 

The  basin  and  the  crib-work,  extending  westwardly  from 
its  southwesterly  corner,  were  constructed,  and  are  claimed 
by  the  complainants,  upon  one  and  the  same  claim  of  right 
and  title.  I  have  already  considered  this  claim,  so  far  as 
relates  to  the  basin,  in  the  opinion  just  read  in  the  case  of 
these  same  complainants  against  the  Central  liaiiroad  Com- 
pany of  New  Jersey  and  others.*  I  now  refer  to  that  opinion 
for  the  sake  of  w^nvenience,  and  adopt  it  here,  so  far  as  it 
is  applicable  to  this  case.  U]>on  the  reasons  there  stated,  I 
am  of  opinion  that  tlie  complainants  have  not  shown  sucli 
title  to  the  said  crib-work,  as  entities  them  to  an  injunction 
to  protect  them  in  the  enjoyment  thereof.  Upon  this  ground, 
I  am  of  opinion  that  the  injunction  issued  in  each  of  these 
cases,  should  be  dissolved  with  costs,  and  I  do  respectfully 
advise  the  Chancellor  to  make  an  order  accordingly. 

ADorxEO,  Mor.  Canal  and  Bkg.  Co.  v.  Matthieson,  1  C.  E.  Gr.  444. 
Cited  in  Sfevens  v.  Pat.  and  Newark  R.  B.  Co.,  5  Vr.  535 ;   Carlisle  v. 
Cooper,  G  C.  E.  Gr.  581. 

*Ante  p.  419. 


OCTOBER  TERM,  1863.  445 


Walter  et  al.  v.  Lind  et  al. 


Simon  Walter  and  others  vs.  William  Lixd  and  others. 

A  a.2;reed  to  convey  to  B  a  tract  of  land  for  l^oOO.  B  applied  to  C  for  a 
loan  of  that  amount.  C  agreed  to  loan  B  S550  npon  his  giving  a  mort- 
gage upon  tiie  s;iid  tract  for  $350,  with  interest  at  seven  per  cent.  Upon 
agreement  between  the  parties,  A  executed  a  deed  to  B  for  the  land  for 
tlie  nominal  consideration  of  $SoO  ;  B  giving  A  a  bond  and  mortgage  for 
that  amount.  A  assigned  llie  mortgage  to  G  in  pursuance  of  the  agreement 
for  $550 ;  $50  in  cash  to  be  paid  to  B.  Of  this  amount  nothing  was  actually- 
paid  to  B.  Upon  a  bill  to  foreclose,  tiled  by  C,  to  recover  the  nominal 
consideration  of  $S50,  Held, 

1.  Tlie  transaction,  though  in  form  a  sale  and  mortgage  for  ?850,  in 
reality  was  a  sale  and  mortgage  for  $500. 

2.  Tiie  mortgage  was  not  usurious.  It  was  made  for  a  legitimate  pur- 
pose, though  for  a  larger  amount  than  was  really  due.  There  being  no 
usury  in  the  inception  of  the  contract,  no  subsecjuent  transaction  can  ren- 
der it  usurious. 

3.  The  complainants  are  entitled  to  the  $500,  actually  advanced  by  them 
to  the  mortgagee.  Tiie  contract  by  wliich  they  claim  $350  beyond  tliat 
amount  was  usurious,  and  cannot  be  enforced.  Under  such  circumstances, 
the  mortgage  will  be  deemed  a  security  for  the  amount  actually  advanced. 


J.  Whitehead,  for  the  coniphiinants. 

I.  Ustiry,  in  tl^e  answer  of  the  defendants,  Lind  and  wife, 
is  not  pleaded  according  to  the  facts  of  the  case. 

Usury  tmist  be  pleaded  in  accordance  with  the  facts,  and 
the  prof)f  nuist  support  the  plea.  Smith  v.  Brush,  8  Johns. 
B.  84  ;  Tate  v.  WelUngs,^  T.  R.  531,  Lord  Kenyon'sopini(Mi, 
page  538  ;  Lawrence  v.  Knies,  10  Johns.  R.  140  ;  Fulton 
Bank  v.  Beach,  1  Paige  429  ;  Roice  v.  Phillips,  2  Sandf.  Ch. 
R.  lA;  Heljield  v.  Newton,  3  Ibid.  5G4: ;  Vroom  v.  Ditinas,  4 
Paige  526  ;  8  Paige  452. 

IT.  A  security  uncontaminated  with  usury  at  its  ince[)tion, 
is  not  affected  by  any  subsequent  usurious  transaction.  Gray 
V.  Fowler,  1  H.  Black.  463  ;  Pollard  v.  Seholy,  Croke  Eliz. 
20  ;  Rox  V.  Allen,  1  Mod.  69  ;  Ballard  v.  Oddey,  2  Mod. 
307  ;  Rex  v.  Seicell,  7  Jlod.  119  ;  Broicn  v.  Fulsbye,  4  Leon. 
43  ;  Body  v.  Tassell,  3  Leon.  205 ;  Fassel  v.  Brooks,  2  Carr. 

Vol.  I.  2  E 


446  CASES  IN  CHANCERY. 

Walter  et  al.  v.  Li  ml  et  al. 

&  P.  318;  Pcarsall  v.  Kingsland,  3  Edw.  Ch.  E.  195  ;  Busk 
V.  Livhgstoji,  2  Caines'  Cases  in  Error  QQ  :  Ferral  v.  Siuieu, 
1  Saund.  295,  note  1  ;  Sloan  v.  Sonimers,  2  Green's  R.  510  ; 
Donnington  v.  IJreker,  3  StocJd.  362. 

III.  A  sale  of  a  promissory  note  or  bond,  although  for  an 
amount  which,  if  calculated  with  reference  to  interest  on  the 
princij)al,  would  amount  to  usury,  does  not  vitiate  the  secu- 
rity. Donnington  v.  Meeker,  3  Stookt.  362  ;  Mann  v.  Com- 
mission  Co.,  15  Johns.  R.  44. 

IV.  The  transaction  which  gives  rise  to  the  controversy  in 
this  cause,  amounts  to  nothing  more  nor  less  than  a  mere 
change  of  one  security  for  another. 

The  deed  from  Lind  to  Swift  was  but  a  mere  mortgage,  and 
it  was  exchanged  f  )r  a  bond  and  mortgage. 

Lind  was  the  agent  of  Swift,  employed  to  sell  that  bond  and 
mortgage.     It  was,  therefore,  Swift's  act. 

It  makes  no  difference  to  Lind  whether  Swift  still  held  the 
deed,  or  bond  and  mortgage.  He  would  be  equally  bound  to 
pay  $850  in  either  case. 

Lind  owed  Swift  §850,  and  was  bound  to  pay  it.  Swift 
assigned  his  claim  to  the  complainants  ;  sold  it  for  less  than 
was  due  on  it;  but  that  matters  not  to  Lind. 

There  was  no  attempt  at  evading  the  usury  law.  The  sale 
was  not  made  for  that  purpose. 

The  value  of  the  land  is  said  to  be  less  than  the  face  of  the 
bond  and  mortgage.  That  was  an  additional  inducement  to 
Swift  to  sell. 

V.  What  is  the  relief  of  the  complainants.  Clearly  a 
decree  for  the  whole  amount  of  the  bond  and  mortgage. 
Because — ■ 

1.  The  entire  estate  of  Swift  passed  by  his  transfer;  and 
that  entire  estate  was  the  whole  amount  of  the  money  due, 
principal  and  interest.  If  Swift  were  suing,  there  would  be 
no  question  as  to  his  right  to  recover.  The  complainants 
stand  in  his  shoes,  and  are  entitled  to  his  rights. 

2.  This  course  can  work  no  damage  to  Lind  or  his  wife. 
They  owed  Swift  $850,  and  have  never  paid  it.     They  owe 


OCTOBER  TERM,  1863.  447 

Walter  et  al.  v.  Lind  et  al. 

it  Still,  and  ought  in  equity  to  pay  it.  It  can  work  no  dam- 
age to  Pierson.  He  received  his  mortgage  with  notice  of 
the  mortgage  of  the  complainants.  Tiieir  mortgage  was  on 
record.  The  property  was  subject  to  that  lien  at  the  time 
he  took  his  security,  and  that  lien  was  for  a  just  debt  and  a 
legal  one. 

In  the  case  of  Donnington  v.  Meeher,  no  deduction  was 
made.  None  should  be  made  here.  The  defendants  have 
paid  nothing  upon  the  mortgage;  no  reduction  has  been 
made  by  tiiem  of  the  original  debt,  and  no  hard  or  uncon- 
scionable bargain  driven  with  them. 

E.  ScJilcfner,  for  the  defendants,  Lind  and  wife. 

1.  On  the  sale  of  real  estate  covered  by  one  or  more  mort- 
gages, to  the  mortgagee,  the  mortgage  or  mortgages  merge 
in  the  new  deed  of  conveyance,  and  become  null  and  void. 
The  former  mortgagee  and  new  owner  can,  at  a  resale  of  the 
real  estate  in  question  to  the  former  mortgagor  and  later  con- 
veyor, demand  such  a  j)rice  as  he  thinks  a  fair  equivalent  for 
the  real  estate  he  is  about  to  reconvey. 

2.  A  sale  by  the  former  mortgagee  and  later  owner  of  real 
estate,  to  a  second  wife  of  the  former  mortgagor  and  con- 
veyor, which  wife  never  had  any  interest  in  said  real  estate, 
concludes,  if  made  with  the  knowledge  and  privity  of  other 
persons,  as  for  instance  the  assignee  of  a  bond  and  mortgage 
covering  the  real  estate  in  question,  any  objection  on  their 
part  that  the  conveyance  to  the  former  mortgagee  was  not  a 
bona  fide  transaction,  and  that  the  said  mortgagee  never  was 
a  bona  fide  owner  of  the  said  real  estate. 

?>.  All  notes,  bills,  bonds,  mortgages,  &c.,  made  in  the 
county  of  Essex,  for  the  payment  or  delivery  of  any  money 
loaned,  on  which  a  higher  interest  is  reserved  or  taken  than 
seven  per  cent.,  are  utterly  void.  Nix.  Dig.  401,  §1,2; 
Ibid.  402,  §  8. 

4.  Whatever  form,  shape,  or  disguise,  a  contract  for  the 
loan  of  money  assumes,  when  the  capital  is  returned,  a  profit 
made,  or  loss  imposed,  upon    the  necessities   of  the  borrower 


448  CASES  IN  CHANCERY. 

Walter  et  al.  v.  Lind  et  al. 

over  the  legal  rate  of  interest,  will  constitute  usury.  And 
that  usury  may  be  committed  by  agreeing  to  take  the  legal 
interest  on  a  larger  sum  than  that  really  loaned.  Ely  v. 
McChmg,  4  Porter  {Ala.)  128;  Doicdall  \.  Lenox,  2  Edw. 
Ch.  B.  267;  Elood  v.  Shamburg,  3  Cond.  La.  B.  180. 

5.  The  position  of  the  defendant,  Lind,  when  he  negoti- 
ated the  sale  of  the  new  mortgage,  not  yet  drawn  or  exe- 
cuted, was  like  that  of  the  maker  of  an  accommodation  note, 
which  has  been  endorsed  by  somebody  else,  and  on  which  the 
maker  of  the  note  and  real  borrower  wishes  to  raise  a  loan 
by  selling  the  same  at  a  large  discount.  Such  a  transaction 
is  within  the  statute  against  usury.  Iloleman  v.  ETobson,  8 
Humph.  {Tenn.)  127;  3  Johns.  Ch.  B.  395. 

Titsworth,  for  the  defendant,  Pierson. 

The  Chancellor.  The  bill  is  filed  to  foreclose  a  mort- 
gage given  by  Lind  and  wife  to  Abiel  W.  Swift,  dated  June 
3d,  1861,  for  $850,  payable  in  two  years,  with  interest  atseven 
per  cent,  payable  semi-annually.  The  defence  is  that  the 
mortgage  was  given  for  a  usurious  loan.  The  answer  alleges 
that  on  the  4th  of  February,  1861,  about  four  months  before 
the  date  of  the  mortgage,  the  mortgagor  ])urchased  the  ])re- 
mises  of  Swift  for  $500.  That,  i)aving  apj>lied  to  the  com- 
plainants for  a  loan  of  that  amount,  they  agreed  to  lend  hira 
$550  upon  his  giving  them  a  mortgage  for  $850,  with  interest 
at  seven  per  cent.,  to  which  the  mortgagor  agreed.  That 
thereupon,  and  about  the  28th  of  May,  1861,  it  was  agreed 
between  the  parties,  that  Swift  should  execute  a  deed  for  the 
land,  expressing  the  con5:ideration  to  be  $850,  that  Lind  and 
wife  should  give  him  a  bond  and  mortgage  for  that  amount, 
which  should  be  assigned  by  hira  to  the  complainants  for 
$550,  and  of  that  sum  fifty  dollars  in  cash  should  be  paid  to 
the  mortgagor.  That  in  pursuance  of  this  arrangement,  on 
the  third  of  June,  a  deed  was  executed  by  Swift  and  wife  to 
the  wife  of  Lind,  and  thereupon  the  bond  and  mortgage  for 
$850  were  executed  and  delivered  to  Swift,  and  by  him  as- 


OCTOBER  TERM,  1863.  449 

Waller  et  al.  v.  Lind  et  al. 

eigned  to  the  complainants,  and  that  of  the  $50  agreed  to  be 
paid  to  the  mortgagor,  he  received  but  $25,  the  balance  hav- 
ing been  retained,  as  they  allege,  for  fees  and  costs.  That 
this  sum  of  $25  was  paid  to  the  mortgagor  about  the  23d  of 
August,  at  which  time  Swift  received  $500,  the  price  of  the 
lot.  The  answer  alleges  that  the  making  and  delivery  of  the 
bond,  mortgage,  and  assignment,  were  all  usurious,  and  that 
the  consideration  moneys  mentioned  therein  were  not  actually 
paid,  but  were  so  stated  and  set  forth  to  conceal  a  fraudulent 
and  usurious  transaction.  The  answer  further  insists  that 
the  bond  and  mortgage  are  usurious,  because  they  were  made 
and  dated  several  months  before  the  payment  of  the  money 
loaned  to  the  mortgagor. 

The  undis[)uted  facts  of  the  case  are,  that  on  the  22nd  of 
May,  1857,  William  Lind,  the  mortgagor,  being  the  owner 
of  the  mortgaged  premises,  and  being  largely  indebted,  by 
mortgage  and  otherwise,  to  Abiel  W.  Swift,  conveyed  the 
premises  in  fee,  by  deed  of  bargain  and  sale,  to  Swift,  his 
creditor,  in  payment  of  his  debt.  The  entire  indebtedness 
was  $1250,  of  which  sum  $850  had  been  secured  by  mort- 
gage upon  the  premises.  The  deed  was  not  given  by  way  of 
mortgage,  or  as  collateral  security.  The  testimony  of  Mr. 
Swift  is  very  express  upon  this  point.  In  answer  to  the 
question  whether  he  considered  the  deed  made  to  him  by 
Lind  anything  more  than  a  security  for  the  debt,  he  an- 
swered :  "  I  consider  it  a  bona  fide  sale.  I  don't  consider  he 
owed  me  anything  after  he  made  me  the  deed." 

Lind,  in  fact,  had  been  many  years  in  the  employ  of  Swift, 
and  had  become  his  debtor  for  advances  made  from  time  to 
time,  to  an  amount  beyond  the  value  of  his  property.  Swift 
had  been  an  indulgent  creditor,  and  permitted  Lind,  after 
the  conveyance  in  payment  of  the  debt,  to  remain  upon  the 
premises.  Such  being  the  relation  of  the  parties,  Lind  still 
being  in  embarrassed  circumstances,  and  the  fee  of  the  land 
remaining  in  Swift,  in  the  year  1861,  shortly  before  the  date 
of  this  mortgage.  Swift  agreed  to  convey  the  land  to  the  wife 
of  Lind  in  fee,  if  he  would  pay  him  |500.     To  carry  out 


450  CASES  IN   CHANCERY. 

Walter  et  al.  v.  Lind  et  al. 

that  bargain  this  mortgage  was  made.  Lind,  by  his  answer, 
states  that  he  applied  to  these  complainants  for  a  loan  of 
^500,  that  they  agreed  to  loan,  and  did  loan  him  that  amount 
of  money,  and  took  the  mortgage  in  its  present  shape  as  a 
mere  contrivance  to  cover  up  the  us*iry.  It  is  admitted  that 
the  complainants  advanced  upon  the  mortgage  but  $550,  and 
for  that  sum  advanced,  they  Iiold  the  defendant's  bond  and 
mortgage  for  $850,  payable  in  two  years,  with  interest  at 
sev^en  per  cent.  ;  an  operation  by  which  they  realize  in  two 
years  upon  $550,  a  bonus  of  $342,  over  and  above  the  legal 
rate  of  interest. 

But  it  is  urged  that  this  was  not  a  loan  of  the  money  from 
the  complainants  to  the  mortgagor,  but  a  sale  of  the  mort- 
gage, and  that  the  defendants  had  a  right  to  purchase  at  any 
rate  of  discount,  without  being  chargeable  with  usury.  This 
appears  to  me  a  total  misapprehension  of  the  true  character 
of  the  transaction.  When  the  negotiation  for  this  loan  was 
entered  upon,  Lind  was  not  the  debtor  of  Swift.  Swift  was 
the  owner  of  the  land  which  had  been  conveyed  to  him  by 
Lind  in  payment  of  the  debt.  He  had  agreed  to  recouvey 
the  land  to  Lind,  or,  at  Lind's  request,  to  Lind's  wife,  for  the 
sum  of  $500.  For  that  amount  Lind  was  desirous  to  effect 
a  loan.  But  he  had  no  security  to  offer  till  he  could  get  the 
title.  An  arrangement  is  therefore  made,  by  which  Swift 
conveys  the  land  in  fee  to  Lind's  wife  for  the  nominal  con- 
sideration of  $850,  and  Lind,  in  return,  gave  Swift  a  bond 
and  mortgage  upon  the  premises  for  that  amount,  with  the 
understanding  that  if  the  mortgagee  received  $500,  his  claim 
for  the  land  was  paid  in  full. 

These  papers  were  placed  in  the  hands  of  the  counsel  or 
agent  of  all  the  parties,  to  raise  the  money  and  carry  the 
arrangement  into  effect.  As  between  the  mortgagee  and 
mortgagor,  there  is  no  pretence  of  usury.  The  mortgagee 
testifies  expressly  that  he  agreed  to  convey  the  land  for  $oOO. 
That  was  all  that  was  due  him,  but  the  mortgage  was  taken 
above  the  sum  of  $500  for  Lind's  benefit,  to  enable  him  to 
raise   the  money  upon    it.     All   that  was   realized    upon  the 


OCTOBER  TERM,  1863.  451 


Walter  et  al.  v  Lind  et  al. 


mortgage  above  that  amount  belonged  to  Liiul,  not  to  Swift. 
Swift's  interest  in  the  mortgage  was  limited  to  $500.  That 
was  all  he  claimed,  and  all  he  received.  If  the  mortgage  had 
been  sold  for  its  nominal  value,  $850,  three  hundred  and 
fifty  dollars  of  that  amount  would  in  equity  have  belonged 
to  Lind,  and  he  might  have  compelled  the  repayment  of  the 
money.  To  the  extent  of  Swift's  interest,  the  sale  was  ne- 
gotiated and  made  for  his  benefit,  but  beyond  that  amount  it 
was  in  reality  negotiated  and  made  for  Lind's  own  benefit. 
The  loan  was,  in  fact,  as  the  whole  transaction  shows,  nego- 
tiated by  him,  and  in  reality  for  his  benefit.  That  this  wasso 
understood,  is  shown  by  the  fact  that  when  the  loan  for  $550 
was  effected,  $500  was  sent  to  the  mortgagee,  and  the  other 
$50  appropriated  for  the  benefit  of  the  mortgagor.  How, 
then,  can  this  be  denominated  a  sale  by  the  mortgagee  of  the 
mortgage?  Is  it  not  obvious  that  it  was  in  reality  an  effort 
by  the  mortgagor  to  raise  a  loan  upon  his  own  mortgage, 
given  to  a  third  party,  for  an  amount  beyond  the  sum  really 
due? 

The  papers  themselves  demonstrate  that  this  must  of  ne- 
cessity have  been  the  real  character  of  the  transaction.  The 
deed  from  Swift,  the  bond  and  mortgage  from  Lind  and  wife 
to  Swift,  and  the  assignment  from  Swift  to  the  complainants, 
are  all  dated  on  the  3d,  and  acknowledged  on  the  4th  of 
June,  1861.  They  are  all  drawn  by  the  same  scrivener, 
attested  by  the  same  witness,  and  acknowledged  before  the 
same  master.  They  are  obviously  parts  of  one  and  the  same 
transaction.  The  negotiation  for  the  loan  must  have  been 
entered  upon  and  completed  when  there  was  no  mortgage  in 
existence,  and  \yhen  the  fee  of  the  land  was  in  the  mortgagee. 
These  facts  demonstrate  the  truth  of  the  mortgagee's  evi- 
dence, that  he  was  to  receive  S500  for  the  land,  and  that  the 
mortgage  was  made  to  be  assigned  for  that  amount.  Beyond 
that  sum  the  interest  was  in  the  mortgagor.  As  between 
the  complainants  and  the  mortgagor,  the  transaction  was 
sim|)ly  this  :  they  loaned  him  $550,  and  took  his  mortgage 
for  $850 ;  and  of  the  $50  loaned,  they  took  $25  to  pay  the  ex- 


452  CASES  IN  CHANCERY. 

Walter  et  al.  v.  Lind  et  al. 

penses  of  preparing  the  papers  and  insuring  the  property, 
and  appropriated  the  remaining  $25  to  pay  a  debt  alleged  to 
be  due  from  the  mortgagor  to  the  brother  of  one  of  the 
mortgagees,  who  aided  the  mortgagor  in  negotiating  the  loan. 
The  witness,  indeed,  testifies  that  the  mortgagor  promised 
])im  the  whole  $50  as  a  compensation  for  raising  the  money. 
A  clearer  case  of  usury  it  is  difficult  to  imagine.  To  permit 
such  a  contract,  established  by  clear  testimony,  to  be  enforced 
in  a  court  of  equity,  would  be  a  reproach  to  the  administra- 
tion of  justice. 

There  is  nothing  in  the  evidence  which  can  alter  the  essen- 
tial character  of  the  transaction.  It  is  unnecessary,  therefore, 
to  discuss  the  credibility,  or  the  competency  of  the  evidence 
on  the  part  of  the  com[)lainants. 

The  complainants'  counsel  insists  that  the  mortgagor  has 
no  ground  of  com})laint,  as  he  is  in  no  wise  injured  by  the 
transaction.  That  he  gave  a  mortgage  for  $850.  Tiiat  he 
was  indebted  in  that  amount  to  Swift.  That  the  mortgagee 
could  have  recovered  the  amount  due  on  the  face  of  the 
mortgage,  and  that  the  assignees  are  entitled  to  stand  in  his 
shoes.  That  the  assignees  are  entitled  to  stand  in  the  shoes 
of  the  mortgagee  is  true,  but  the  whole  fallacy  of  the  argu- 
ment consists  in  the  assumption  that  the  mortgagee  was  en- 
titled to  recover  the  face  of  the  mortgage.  Swift  was  entitled 
to  $500,  and  it  is  clear  that  the  assignees  can  recover  no 
more.  The  apparent  contradiction  in  tiie  testimony  of  the 
witnesses  on  this  point,  is  attributable  mainly  to  the  fact  that 
they  speak  sometimes  of  the  form,  and  sometimes  of  the  sub- 
stance of  the  transaction.  In  form,  it  was  a  sale  and  mort- 
gage for  $850.  In  reality,  it  was  a  sale  and  mortgage  for 
$500.  The  apparent  conflict  in  the  testimony  on  this  point, 
is  rendered  totally  immaterial  by  the  admitted  facts  that  the 
mortgagee  claimed  and  received  but  $500  upon  the  mortgage. 

The  bill  alleges  that  the  mortgage  itself  is  usurious.  This 
is  a  mistake  ;  but  I  do  not  think  the  error  is  fatal.  The 
mode  in  which  the  usury  was  taken  is  intelligibly  stated,  and 
substantially  in  accordance  with  the  evidence. 


OCTOBER  TERM,  18G3.  453 

•  Swedesboroiigh  Cliurch  v.  Shivers. 

The  mortgage,  however,  was  clearly  not  usurious.  It  was 
made  for  a  legitimate  purpose,  though  for  a  lai'ger  amount 
than  was  really  clue.  There  being  no  usury  in  its  inception, 
no  subsequent  transaction  can  render  it  usurious.  Sloan  v. 
Sommcrs,  2  Green's  li.  510;  Donnington  v.  Meeker,  3  Stoekt. 
362. 

There  was  due  upon  it  from  the  mortgagor  $500,  which 
was  paid  by  the  complainants  to  the  mortgagee,  and  which 
in  equity  they  are  entitled  to  receive.  The  contract  by  which 
they  claim  to  recover  $350  beyond  that  amount,  was  usurious 
and  cannot  be  enforced.  Under  such  ciieumstances,  the 
mortgage  will  be  deemed  a  security  for  the  amount  actually 
advanced.  Eaglcson  v.  Sfioticcll,  1  Johns.  Ch.  li.  53G. 
A  decree  will  be  made  accordingly. 


The  Rector,  Church  Wardens,  and  Vestrymen  op 
THE  Swedish   Evangelical   Lutheran  Church   in 

THE  TOWN  OP  SWEDESBOROUGII,  NEAR  RaCCOON  CrEEK, 

VS.  Charles  P.  Shivers. 

1.  Where  there  is  uncertainty  as  to  tlie  extent  of  the  responsibility  of  !i 
party  from  whom  rent  is  sought  to  be  recovered,  a  court  of  equity  will 
maintain  jurisdiction  of  a  suit  for  its  recovery. 

2.  A  bill  is  not  demurrable  for  want  of  proper  parties,  when  all  the 
persons  whose  riglits  are  to  be  atl'ected  by  the  decree  are  joined. 

3.  A  change  in  the  ecclesiastical  relation  of  a  church  for  whose  benefit 
property  is  held  in  trust,  does  not  necessarily  involve  any  perversion  of 
the  trust,  or  diversion  of  the  fund  from  its  legitimate  purpose. 

4.  An  objeclion  to  a  suit  that  the  amount  involved  is  too  trivial  to  justify 
the  court  in  taking  cognizance  of  it,  may  be  taken  advantage  of  by  special 
motion  to  dismiss  the  bill,  or  the  court  may  of  its  own  motion  at  the  hear- 
ing, order  the  bill  to  be  dismissed. 

5.  If  a  suit  have  no  other  object  than  the  mere  recovery  of  a  sum  of 
|)1.75,  the  bill  will  be  dismissed;  but  if  it  seeks  to  establish  a  right  of  a 
permanent  and  valuable  nature,  it  falls  within  the  recognized  exceptions 
tfl  the  general  principle,  and  the  court  will  maintain  jurisdiction. 


454  CASES  IN  CHANCERY. 

Swedesboroiigh  Church  v.  Shivers. 

Kingman,  for  the  defendant,  in  sup[)ort  of  the  deuiurrer. 
Tlie  bill  is  defective  on  three  grounds. 

1.  Want  of  necessary  j/arties. 

2.  Want  of  certainty. 

3.  The  complainants  have  full  and  complete  remedy  at  law. 
The  bill  is  not  only  defective  for  M'ant  of  necessary  parties, 

but  it  contains  irrelevant  and  impertinent  matter.  It  sets 
out  a  great  many  different  conveyances  to  different  parties. 

The  complainants  do  not  claim  any  certain  amount.  They 
show  that  the  lot  in  question  has  been  subdivided,  and  that 
it  is  held  in  tiiree  shares,  without  showing  how  much  is  due 
upon  the  share  held  by  the  defendant. 

The  bill  shows  that  the  complainants  have  a  right  to  re- 
cover at  law.  The  charter  gives  a  right  of  distress.  An 
action  ou  the  case  would  lie.  They  may  recover  in  justices' 
court. 

Carpenter,  for  the  complainants,  contra. 

The  question  involves  large  interests  and  a  great  amount 
of  property.  The  whole  town  of  Swedesboruugh  is  held 
under  ground  rents. 

The  Swedish  church  have  affiliated  with  Episcopal  church. 
It  is  now  known  as  Trinity  Church  of  Swedesborough.  Un- 
der that  name  it  has  collected  mortgages.  The  bill  states  the 
continuance  of  the  corporation  to  this  date. 

There  is  no  want  of  j)arties.  The  bill  seeks  to  recover 
only  the  rent  charged  upon  the  land  owned  by  the  defendant. 
The  part  held  by  him  is  precisely  descril)ed. 

As  to  want  of  certainty.  The  complainants  cannot  state 
the  precise  sum.  They  call  for  an  account  to  ascertain  what 
that  sum  is.  It  is  the  uncertainty  that  sends  them  here.  Tiiey 
come  here  on  that  very  ground.  1  Story's  Eq.  Jur.,  §  684  ; 
Benson  v.  Baldwyn,  1  Atk.  598  ;  Livingston's  Ex'rs  v.  Liv- 
ingston, 4  Johns.  Ch.  R.  287,  290. 

As  to  remedy  at  law.  The  complainants  cannot  sue  in  an 
action  at  law.  No  action  for  use  and  occupation  would  lie 
against  the  defendant.     The  fee  is  in  him. 


OCTOBEIl  TERM,  1863.  455 

Swedesborough  Church  v.  Shivers. 

In  an  action  at  law,  the  complainants  would  be  comj)elle(l 
to  show  the  share  that  Shivers  would  be  obliged  to  pay. 

The  complainants  do  not  a-k  any  pre(;ise  sum.  They  ask 
Shivers  to  admit  what  is  true,  and  to  permit  them  to  prove 
other  facts  to  establish,  as  far  as  may  be,  their  rights. 

If  the  Swedish  church  has  merged  in,  or  affiliated  with  the 
Episcopal  church,  and  if  the  trust  is  diverted,  this  defendant 
cannot  set  it  up. 

The  CiiAXCELLOR.  The  complainants,  by  their  bill,  set 
forth  that  on  or  about  the  twenty-fifth  of  OL;t()I)er,  A.  D.  1765, 
they  were  incorporated  by  letters  patent  under  the  seal  of  tlie 
then  province  of  New  Jersey,  in  the  name  and  under  the 
authority  of  the  King  of  Great  Britain,  and  that  tliey  have 
continued  a  body  cor|)orate,  and  have  acted  and  been  recog- 
nized as  such,  to  the  present  time.  That  by  their  charter  of 
incorporation  they  were,  among  other  things,  invested  with 
})0wer  to  take,  hold,  and  enjoy  all  lands,  tenements,  and  here- 
ditaments, corporeal  and  incorporeal,  given,  granted,  or  de- 
vised for  the  use  of  tiie  said  church  or  parsonage  of  the  town 
of  Swedesborough,  and  to  sell  or  dispose  of  the  same  in  fee  or 
for  life,  under  certain  yearly  rents.  And  that  being  seized 
and  possessed  in  fee  of  certain  lands  in  the  town  of  Swedes- 
borough, which  had  been  granted  to  the  said  church  and  cor- 
poration, for  the  su[)port  and  maintenance  of  the  minister 
thereof,  on  or  about  the  twenty-fifth  of  March,  A.  D.  17G8, 
they  sold  and  ci)nveyed  in  fee  to  divers  persons,  certain  par- 
cels of  the  said  lands,  in  consideration  of  certain  yearly  rents 
reserved  to  the  said  corporation,  in  and  by  the  said  deeds  to 
be  held  in  fee,  subject  to  the  {)ayment  by  the  grantees,  their 
heirs  or  assigns,  of  the  annual  rent  in  the  said  deed  s[)ecified. 

That,  on  or  about  the  twenty-fifth  of  April,  1791,  the  said 
corporation,  by  deed,  sold  and  conveyed  to  Samuel  Ogden,  in 
fee,  a  lot  of  one  acre,  in  consideration  of  the  yearly  rent  of 
twenty-five  shillings,  reserved  to  be  paid  to  said  corporation 
for  ever.  That  the  said  lot  has  been  divided  and  subdivided 
by  conveyances  from  those  holding  under  said  Ogden.     That 


456  CASES  IN.  CHANCERY. 


Swedesborongh  Church  v.  Shivers. 


on  the  fifteenth  of  March,  1848,  a  part  of  said  lot,  described 
by  metes  and  bounds,  was  conveyetl  by  Turner  Risduu  and 
wife  to  the  defendant,  subject  to  an  annuity  or  ground  rent, 
payable  to  the  rector  and  church  wardens  of  Swedesborough 
church  (meaning  the  complainants),  and  that  it  was  subject  to 
a  proportionate  part  of  the  ground  rent  reserved  in  the  con- 
veyance to  Ogden. 

That  on  the  third  of  February,  1853,  Shivers  conveyed 
part  of  said  lot,  in  fee,  to  one  Malachi  C.  Horner,  by  metes  and 
bounds,  subject  to  an  annuity  or  ground  rent,  payable  on  the 
twenty-fifth  day  of  March,  in  each  year,  to  the  rector,  church 
wardens,  and  vestrynien  of  the  present  Episcopal  church  at 
Swedesborough  (meaning  thereby  to  describe  the  aforesaid 
corporation).  That  the  liability  of  the  said  land  for  the 
ground  rent  reserved,  was  acknowledged  in  the  deeds  and 
paid  by  the  owners  of  the  lots,  respectively,  into  which  the 
same  became  subdivided,  from  the  time  of  the  original  grant 
till  the  time  of  the  conveyance  to  the  defendant,  and  that  the 
rent  was  paid  by  him  until  the  year  1858.  But  that  since 
that  time  he  has  refused  to  pay  any  part  thereof,  and  declares 
his  intention  to  test  the  right  of  the  complainants  to  recover 
the  same.  And  that  from  inability  to  produce  the  deeds  un- 
der which  the  defendant  claims,  and  for  want  of  certainty  as 
to  tiie  proportion  of  ground  rent  properly  chargeable  on  the 
lot  held  by  the  defendant,  the  complainants  are  unable  to 
.    proceed  at  law. 

The  bill  prays  that  the  defendant  may  disclose  and  set  forth 
the  title  to  the  lot  conveyed  to  him,  and  under  which  he  holds 
the  same,  and  may  admit  the  rent ;  and  that  the  true  appor- 
tionment of  the  annual  rent  chargeable  upon  the  defendant's 
laud  may  be  ascertained  and  settled,  and  that  an  account  may 
be  taken  of  the  rent  in  arrear,  and  that  the  defendant  may  be 
decreed  to  pay  the  same. 

To  this  bill  there  is  a  general  demurrer,  for  want  of  equity. 

1.  It  is  urged  that  the  bill  cannot  be  sustained  because 
the  complainants  have  a  complete  and  adequate  remedy  at 
law. 


OCTOBER  TERM,  1863.  457 

Swedesborough  Church  v.  Shivers. 

Bill  inasmuch  as  tlie  defendants  have  a  fee  in  the  land,  and 
a  recovery  must  be  had  u])()n  the  deed,  the  complainants  can- 
not safely  proceed  at  law,  until  the  sum  for  which  the  defend- 
ant's land  is  liable,  is  ascertained.  This  object  the  complain- 
ants' bill  seeks  to  accomplish.  Where  tiiere  is  uncertainty  as 
to  the  extent  of  the  responsibility  of  the  party  from  whom  the 
rent  is  sought  to  be  reeovei'cd,  courts  of  equity  will  maintain 
jurisdiction.  1  Slori/s  Eq.  Jar.,  §  6S4:;  Livingstones  Ex^rs  v. 
Limngslon,  4  Johns.  Cli.  R.  287. 

2.  There  is  no  want  of  proper  parties.  The  bill  seeks  to 
recover  only  the  rent  char<red  upon  the  land  owned  by  the 
defendant.  That  is  defined  by  strict  metes  and  bounds.  The 
right  of  no  other  land  owner  can  be  aflPected  by  the  decree. 
The  bill  does  not  ask  an  ajiportionment  of  the  rent  among  the 
different  owners,  nor  seek  to  settle  any  question  of  boundary 
or  conflicting  right. 

3.  A  change  in  the  ecclesiastical  relation  of  the  church,  for 
whose  benefit  the  [)roperty  is  held  by  the  complainants,  does 
not  necessarily  involve  any  perversion  of  the  trust,  or  diver- 
sion of  the  fund  from  its  legitimate  purpose.  Tliere  is 
nothing  upon  the  face  of  the  bill  to  warrant  the  Inference  that 
the  fund  is  not  applied  in  strict  accordance  with  the  terms  of 
the  trust.  If  the  fact  were  otherwise,  it  could  constitute  no 
defence  in  this  suit.  The  bill  alleges  that  the  complainants 
are  the  same  corporation  with  that  by  whom  the  land  was' 
originally  granted,  and  in  whose  favor  the  .rent  was  reserved. 
They  are  the  trustees  of  the  fund,  and  are  authorized  to  en- 
force its  collection.  Its  due  appropriation  is  a  matter  which 
concerns  the  cestui  que  trusts  alone,  and  cannot  be  inquired 
into  in  this  action. 

4.  The  objection  that  the  value  of  the  suit  is  too  trivial  to 
justify  the  court  in  taking  cognizance  of  it,  though  not  spe- 
cially assigned  as  a  ground  of  demurrer,  may  be  taken  ad- 
vantage of  by  s{)ecial  motion  to  dismiss  the  bill,  or  the  court 
may,  of  its  own  motion  at  the  hearing,  order  the  bill  to  be 
dismissed  upon  this  ground.  3Iosdy\  R.  47,  356  ;  Brace  v. 
Taylor,  2  Ath.  253 ;  Cooper's  Eq.  PI.  166. 


458  CASES  IN  CHANCERY. 

Crowell  V.  Botsford. 

By  Lord  Bacon's  ordinances  (Rule  15),  all  suits  uiider  the 
value  of  ten  pounds  are  regularly  to  be  dismissed.  Beamea' 
Orders  in  Chan.  10. 

These  rules  bear  the  character  of  original  constitutional 
ordinances  for  the  government  of  the  [)ractice  of  the  court. 
Moore  V.  Lyttle,  4  Johns.  Ch.  R.  184. 

The  ride  in  question  is  founded  in  reason  and  policy.  Its 
design  is  to  prevent  expensive  and  mischievous  litigation, 
which  can  result  in  no  real  benefit  to  the  complainant,  but 
which  may  occasion  delay  and  injury  to  other  suitors.  Courts 
of  equity  sit  to  administer  justice  in  matters  of  substantial 
interest  to  the  parties,  not  to  gratify  their  passions,  or  to  fos- 
ter a  spirit  of  vexatious  litigation.  If  the  suit  had  no  other 
object  than  the  mere  recovery  of  the  amount  which  is  the 
subject  of  controversy,  the  bill  should  be  dismissed.  Bat  the 
bill  in  this  case  is  not  filed  for  the  mere  recovery  of  the  amount 
now  claimed  to  be  due.  It  seeks  also  to  establish  a  right  of 
a  permanent  and  valuable  nature,  and  falls  therefore  within 
the  recognized  exceptions  to  the  rule.  Beames'  Orders  10, 
note  33  ■  Ston/s  Eq.  PL,  §  500,  501. 

The  demurrer  is  overruled. 


Louisa  M.  A.  Crowell  vs.  Charles  H.  Botsford. 

1.  The  issuing  of  a  subpoena,  except  in  cases  to  stay  waste,  before  the 
filing  of  the  bill,  is  irregular,  and  if  promptly  brought  to  the  notice  of  the 
court,  the  subpoena,  on  motion  for  that  purpose,  will  beset  aside  as  illegally 
issued. 

2.  Where  a  party  seeks  to  set  aside  the  proceedings  of  his  adversary  for 
an  irregularity  which  is  merely  technical,  he  must  make  his  application 
for  that  purpose  at  the  first  opportunity.  If  a  solicitor,  after  notice  of  an 
irregularity,  takes  any  step  in  the  cause,  or  lies  by  and  suffers  his  adver- 
Bary  to  proceed  therein  under  a  belief  that  his  proceedings  are  regular,  the 
court  will  not  interfere  to  correct  the  irregularity,  if  it  is  merely  technical. 

3.  The  statute  {Nix.  Dig.  97,  §  6,)  is  merely  directory  of  the  mode  of  pro- 
ceeding.    The  time  or  form  in  which  the  thing  is  directed  to  be  done,  is 


OCTOBER  TER:Nr,  1863.  459 

Crowell  V.  Botsford, 

not  essential.     The  proceedings  in  such  cases  are  valid,  though  the  com- 
mand of  tho  statute  is  disregarded  or  disobeyed. 

4.  The  issue  of  the  subpoena  before  bill  filed,  is  a  purely  technical  irreg- 
ularity, and  is  waived  by  an  appearance. 


The  bill  in  this  cause  was  filed  to  foreclose  a  chattel  mort- 
gage. The  subpoena  was  issued  before  the  filing  of  the  bill, 
but  no  notice  was  taken  of  the  irregularity,  and  the  cause 
was  allowed  to  proceed  to  final  decree  and  execution.  The 
defendant  now  asks  to  set  aside  all  the  proceedings  in  the 
cause,  on  the  ground  that  the  subpoena  was  issued  and  served 
before  the  bill  was  filed. 

J.  Whitehead,  for  the  defendant  in  support  of  the  motion. 

H.  J.  Mills,  for  the  complainant,  contra. 

The  Chancellor.  The  defendant  asks  to  set  aside  the 
execution,  final  decree,  and  all  the  proceedings  in  the  cause, 
on  the  ground  that  the  subpoena  was  issued  and  served  before 
the  bill  was  filed. 

The  statute  provides  that  no  subpoena  or  otlier  process  for 
aj)pearance,  shall  issue  out  of  the  Court  of  Chancery,  except 
in  cases  to  stay  waste,  until  after  the  bill  shall  have  been  filed 
with  the  clerk  of  the  court.     Nix.  Dig.  97,  §  6. 

The  proceeding  on  the  part  of -the  complainant  was  clearly 
irregular,  and  had  the  irregularity  been  promptly  brought 
to  the  notice  of  the  court,  the  subpoena,  on  motion  for  that 
'])urpose,  would  have  been  set  aside  as  illegally  issued.  The 
effect  would  have  been  to  compel  the  complainant  to  pay  the 
costs  of  the  motion  and  to  sue  out  a  new  subpoena. 

But  no  such  motion  was  made.  The  complainant  was 
permitted,  without  objection,  to  proceed  to  final  decree  and  to 
Hue  out  execution. 

Where  a  }>arty  seeks  to  set  aside  the  proceedings  of  his 
adversary  for  an  irregularity  which  is  merely  technical,  he 
must  make  his  application  for  that  purpose  at  the  first  oppor- 


460  CASES  IN  CHANCERY. 

Crowell  V.  BotsforJ. 

tnnity.  If  a  solicitor,  after  notice  of  an  irregularity,  takes 
any  step  in  the  cause,  or  lies  by  and  suffers  his  adversary  to 
proceed  therein  under  a  belief  that  his  proceedings  are  regu- 
lar, the  court  will  not  interfere  to  correct  the  irregularity,  if 
it  is  merely  technical.  Hart  v.  Small,  4  Paige  288  ;  Parker 
V.  Williams,  Ibid.  439. 

It  is  now  insisted  that  the  irregularity  is  not  technical ; 
that  the  statute  is  not  directory  merely,  but  imperative;  and 
that  no  valid  decree  can  be  made,  except  there  bo  a  strict 
compliance  with  its  requirements. 

The  provision  of  the  statute  is  a  regulation  of  the  practice 
of  the  court,  directing  the  mode  in  which  its  proceedings 
shall  be  conducted.  The  time  or  form  in  which  the  thing  is 
directed  to  be  done  is  not  essential.  The  proceedings  in  such 
cases  are  held  valid,  though  the  command  of  the  statute  is 
disregarded  or  disobeyed.     Sedgioich  on  Statutes  368. 

That  this  is  the  et^^ect  and  operation  of  the  statute  is  ap- 
])arent,  not  only  from  the  nature  and  design  of  the  enactment, 
but  from  a  reference  to  its  origin  and  the  history  of  the  prac- 
tice under  it. 

The  commencement  of  a  suit  in  chancery  was  originally 
by  bill,  before  the  issuing  of  a  subposna.  The  bill  contained, 
as  it  still  does,  a  prayer  for  subpoena,  which  issued  as  soon  as 
the  bill  was  filed.  Gilbert's  For.  Rom.  64;  3  Bl.  Com. 
442-3. 

Yet  in  a  very  early  treatise  upon  the  proceedings  of  the 
Court  of  Chancery,  it  is  stated  that  "notwithstanding  the 
practice  before  this  time  hath  been  that  no  subpoena  should 
be  sued  forth  of  the  CiMirt  of  Chancery,  without  a  bill  first 
exhibited  ;  yet  of  late,  for  the  ease  of  all  suitors  and  subjects, 
it  hath  been  thought  good  that  every  man  may  have  a  sub- 
poena out  of  the  same  court,  without  a  bill  first  exhibited." 
TothiWs  Proceed.  1. 

And  by  Lord  Clarendon's  orders  in  chancery,  in  1661,  it 
is  directed,  "  that  all  plaintiffs  may  have  liberfu?  to  take 
forth  subpoenas  ad  respondendum  before  the  filing  of  their 


OCTOBER  TERM,  1863.  461 

Crowell  V.  Botsford. 

bills,  if  they  please,  notwitlistanding  any  late  order  or  usage 
to  the  contrary."     Bcames'  Orders  in  Chan.  168. 

This  order  continued  in  force  until  1705,  when  it  was  en- 
acted (by  statute  of  Ann,  ch.  16,  §  22,)  that  no  "subpcBna 
or  any  other  process  for  appearance,  do  issue  out  of  any 
court  of  equity,  till  after  the  bill  is  filed,  except  in  cases  of 
bills  for  injunctions  to  stay  waste,  or  stay  suits  at  law  com- 
menced." The  statute  is  equally  peremptory  in  its  terms 
with  our  own,  yet  it  has  always  been  regarded  as  directory 
only,  and  a  departure  from  its  requirements  a  mere  irregu- 
larity, which  subjected  the  party  to  costs. 

In  Hinders  Ch.  Pr.  76,  it  is  said  that,  notwithstanding 
the  statute,  "solicitors,  through  ignorance  and  inattention, 
frequently  sue  out  and  serve  this  writ  before  the  bill  be  filed, 
taking  care  to  file  the  bill  on  the  return  day,  yet  that  prac- 
tice is  altogether  irregular  (except  in  cases  in  the  statute 
excepted),  and  the  complainant  does  it  at  the  risk  of  costs." 

The  elementary  books  all  treat  the  issuing  of  the  subpoena 
before  the  filing  of  the  bill,  since  the  passage  of  the  statute, 
as  an  irregularity,  which  exposes  the  complainant  to  the 
hazards  of  costs.  1  Neioland's  Pr.  62  ;  2  Maddock''s  Ch.  P)\ 
197  ;  1  Smith's  Ch.  Pr.  110;  1  DanieWs  Ch.  Pr.  592. 

The  same  rule  prevailed  under  the  ancient  practice  of  the 
court,  prior  to  the  adoption  of  Lord  Clarendon's  order,  au- 
thorizing the  subpoena  to  be  issued  before  the  filing  of  the 
bill. 

Cases  are  very  frequent,  during  the  reign  of  Elizabeth, 
where  costs  are  adjudged  to  the  defendant,  for  want  of  a  bill 
after  the  service  of  a  subpoena.  Cary^s  ft.  98,  103,  105, 
114,  118,  143,  145,  153,  156. 

Although  the  defendant  was  entitled  to  costs,  yet  by  "  pre- 
ferring costs"  he  was  not  relieved  from  appearing  when  the 
bill  was  filed,  and  so  little  was  gained  by  the  proceeding,  that 
the  practice  has  become  obsolete.  It  is  considered  most  ad- 
vantageous for  the  defendant,  when  he  has  been  improperly 
served  with  a  subpoena  before  filing  the  bill,  to  wait   till  the 

Vol.  I.  2  p 


462  CASES  m  CHANCERY. 

McGee  v.  Smith. 

attachment  has  beeu  issued  against  him,  and  then  to  move 
to  set  the  process  aside  for  irregularity.  The  effect  of  such  a 
proceeding  is  to  oblige  the  plaintiff*  to  sue  out  and  serve  a 
fresh  subpoena.     1  DanieWs  Ch.  Pr.  593. 

This,  in  its  operation,  is  in  accordance  with  the  practice  in 
this  court,  although  no  resort  is  had  with  us  to  the  writ  of 
attachment. 

The  issue  of  the  subpoena  before  bill  filed,  is  an  irregular- 
ity so  purely  technical,  that  it  is  waived  by  an  appearance. 
1  DanieWs  Ch.  Pr.  593. 

There  is  another  objection  which  is  equally  decisive  against 
the  motion.  It  appears,  by  the  evidence,  that  the  subpcena 
was  issued  before  the  filing  of  the  bill,  in  consequence  of  a 
written  offer  by  the  defendant's  solicitor  to  enter  an  appear- 
ance for  the  defendant.  An  acknowledgment  of  the  legal 
service  of  the  subpoena  was  endorsed  upon  the  writ.  At  the 
time  of  the  endorsement,  the  defendant's  solicitor  knew  that 
the  bill  had  not  been  filed.  The  complainant's  solicitor  was 
justified  in  regarding  the  acts  of  the  defendant's  solicitor,  as 
an  appearance  for  the  defendant,  and  as  a  waiver  of  the 
irregularity  in  the  issue  of  the  writ.     Nix.  Dig.  98,  §  20. 

There  is  no  evidence  of  surprise  or  merits.  The  applica- 
tion rests  solely  on  the  ground  of  illegality  of  the  proceed- 
ings on  the  part  of  the  complainants. 

The  motion  must  be  denied,  and  the  rule  to  snow  cause 
discharged,  with  costs. 


Catharine  McGee  vs.  John  Smith. 

1.  The  title  of  a  purchaser  under  a  sheriffs  sale,  is  co-extensive  with  the 
description  contained  in  the  mortgage,  the  bill  to  foreclose,  and  the  writ  of 
fieri  facias  under  which  the  sale  was  made. 

2.  It  is  not  necessary  that  the  decree  should  describe  the  premises  pre- 
cisely ;  it  is  usual  to  designate  them  in  the  decree  by  reference  to  the  bill, 

3.  A  party  to  a  foreclosure  suit  is  bound  by  the  decree,  and  cannot  con 


OCTOBER  TERM,  1863.  463 

McGee  v.  Smith. 

test  the  title  of  the  pnrcliaser  unJer  it,  while  the  decree  and  the  sale  and 
conveyance  remain  in  force. 

4.  Where  a  defendant  has  filed  an  answer  to  a  bill  to  foreclose,  a  pur- 
chaser at  a  siierift's  sale  under  tlie  decree,  is  presumed  to  have  purchased 
upon  the  faith  of  that  answer,  and  in  reliance  upon  the  truth  of  its  state- 
ments. Such  defendant  is  estopped  from  denying  the  truth  of  the  answer, 
to  the  prejudice  of  the  purchaser's  title. 

5.  An  injunction  will  not  be  continued  for  the  mere  purpose  of  restrain- 
ing a  naked  trespass,  or  for  the  purpose  of  quieting  the  possession  of  a 
romplainant  who  shows  no  title  to  the  premises  in  dispute. 

6.  The  filing  of  exceptions  to  the  answer  constitutes  no  objection  to  the 
dissolution  of  an  injunction,  if  the  equity  of  the  bill  upon  which  the  in- 
junction rests  has  been  fully  answered. 


The  complainant,  by  her  bill,  alleges  that  her  husband, 
Hugh  McGee,  in  his  lifetime,  was  seized  in  fee  of  a  parcel  of 
land  in  Jersey  City,  which,  on  a  map  of  the  lands  of  Cor- 
nelius Van  Vorst,  tiled  in  the  clerk's  office  of  the  county  of 
Hudson,  on  the  24th  of  April,  1847,  was  known  and  distin- 
guished as  lots  number  twelve  and  thirteen,  on  block  sixty- 
three,  fronting  on  the  northerly  side  of  Railroad  avenue,  and 
being  fifty  feet  wide  in  front  and  rear,  subject  to  a  mortgage 
given  by  McGee  and  wife  to  Cornelius  Van  Vorst,  to  secure 
the  sum  of  $1175,  a  part  of  the  purchase  money  of  said 
premises.  That,  being  so  seized,  McGee  in  his  lifetime  built 
two  houses  on  the  land,  which,  together,  covered  the  entire 
front  of  fifty  feet  on  the  avenue.  That  the  westerly  house  is 
twenty-eight  feet  in  width,  and  covers  the  whole  front  of  lot 
number  twelve,  and  three  feet  of  lot  number  thirteen  ;  and 
that  the  easterly  house,  on  lot  number  thirteen,  is  only  twen- 
ty-two feet  in  width.  That  the  houses  are  three  stories  high, 
and  have  a  party  wall  between  ihem,  from  the  foundation  to 
the  roof.  That  McGee,  during  his  life,  occupied  the  westerly 
house  as  his  mansion  or  homestead,  the  other  house  being 
occupied  by  tenants.  He  died  on  the  12th  of  December, 
1861.  By  his  will  he  devised  the  house  and  lot  on  Railroad 
avenue,  nunibered  two  hundred  and  twenty,  to  the  complain- 
ant during  her  natural  life,  in  lieu  of  dower,  and  on  her 
death,  to  his  daughter  Hannah  ;  and  the  house  and  lot  nura- 


464  CASES  IN  CHANCERY. 

McGee  v.  Smith. 

bered  two  hundred  and  eighteen,  to  his  son,  Hugh  McGee 
the  house  and  lot  devised  to  the  complainant,  being  the  house 
and  lot  above  described  as  the  homestead  of  Hugh  McGee, 
consisting  of  lot  number  twelve,  and  a  part  of  lot  number 
thirteen.  After  the  death  of  her  husband,  the  complainant 
continued  in  the  occupation  of  the  whole  of  the  house  and 
premises  devised  to  her  by  the  will  of  her  husband. 

A  bill  having  been  filed  in  this  court  for  the  foreclosure  of 
the  mortgage  upon  the  said  premises,  given  by  McGee  to 
Van  Vorst,  a  decree  was  made,  by  which  it  was  directed  that 
the  house  and  lot  devised  to  Hugh  McGee,  being  lot  number 
two  hundred  and  eighteen,  should  be  first  sold  to  satisfy  the 
mortgage,  and  that  the  remainder,  being  lot  number  two 
hundred  and  twenty,  which  was  devised  to  the  complainant 
for  life,  after  the  termination  of  the  life  estate,  should  be  next 
sold  for  that  purpose.  At  the  sheriff's  sale  under  the  decree, 
Smith  became  the  purchaser  of  lot  number  two  hundred  and 
eighteen.  No  sale  was  made  of  the  complainant's  life  inter- 
est in  lot  number  two  hundred  and  twenty. 

The  bill  charges  that  the  defendant  claims  title,  by  virtue 
of  his  purchase,  to  twenty-five  feet  front,  including  three  feet 
upon  which  the  complainant's  house  stands,  and  has  entered 
upon  the  premises  for  the  purpose  of  changing  the  partition 
wall  between  the  houses  ;  and  prays  that  the  complainant 
may  be  quieted  in  her  possession,  and  the  defendant  restrained 
from  destroying  the  party  wall,  or  doing  other  injury  to  the 
complainant's  premises,  or  taking  possession  of  any  part 
thereof  by  force.  An  injunction  issued  pursuant  to  the 
prayer  of  the  bill.  The  defendant,  having  answered,  asks  a 
dissolution  of  the  injunction. 

McClelland,  for  the  defendant,  in  support  of  the  motion. 

The  answer  meets  every  material  averment. 

The  injunction  may  be  dissolved,  though  the  answer  do  not 
fully  meet  the  averments  of  the  bill.  Quachenbusli  v.  Van 
Biper,  Saxton  476,  488. 


OCTOBER  TERM,  1863.  465 

McGee  v.  Smith. 

Ransom,  for  the  complainant,  contra. 

The  answer  is  not  fully  responsive  to  the  averments  of  the 
bill. 

A  court  of  equity  will  restrain  irreparable  mischief  until 
right  be  decided  at  law. 

The  Chancellor.  The  controversy  depends  entirely 
upon  the  title  which  Smith  acquired  by  his  purchase  at  the 
sheriff's  sale,  under  the  decree  of  foreclosure.  That  right, 
whatever  it  may  be,  is  paramount  to  any  title  which  the 
complainant  could  acquire  under  the  will  of  her  husband. 

The  complainant,  by  her  bill,  alleges  that  the  decree  of  fore- 
closure directed  that  lot  number  two  hundred  and  eighteen, 
being  the  lot  devised  to  Hugh  McGee,  the  son  of  the  testa- 
tor, shouhl  be  first  sold,  and  that  Smith  became  the  purchaser 
of  that  lot.  Tiiis  fact  is  denied  by  the  answer.  It  appeals 
that  the  decree  in  the  foreclosure  suit  makes  no  mention  of 
the  numbers  two  hundred  and  eighteen  or  two  hundred  and 
twenty,  which  are  the  city  numbers  used  to  designate  the 
houses  on  the  avenue,  but  describes  the  lots  as  "  numbers 
twelve  and  thirteen,  on  block  sixty-three,  as  they  are  known 
?nd  designated  on  Van  Vorst's  map."  Those  lots  are  de- 
scribed in  the  mortgage  and  in  the  bill  to  foreclose,  as  being 
each  twenty-five  feet  in  width.  The  sale  and  conveyance  by 
the  sheriff  to  Smitii,  was  made  in  accordance  with  the  origi- 
nal division  and  description  of  the  lots  on  the  Van  Vorst 
map,  and  not  in  pursuance  of  any  subsequent  arrangement 
of  the  lots  made  by  McGee,  and  recognized  in  his  will.  In 
the  original  division  of  the  lots  on  the  Van  Vorst  map,  and  in 
the  mortgage  from  McGee  to  Van  Vorst,  under  which  the 
foreclosure  and  sale  was  made,  lot  number  thirteen,  which 
was  sold  to  Smith,  is  described  as  being  twenty-five  feet  iu 
width.  That  is  the  description  of  the  lot  in  the  bill  to  fore- 
close, and  in  the  writ  of  fieri  facias,  by  virtue  of  which  the 
sale  was  made.  Whether  the  width  of  the  lot  is  stated  in 
the  decree  or  not,  is  immaterial.  It  is  usual  to  designate  the 
premises  in  the  decree  by  reference  to  the  bill,  not  by  precise 


466  CASES  IN  CHANCERY. 

McGee  v.  Smith. 

description.  Catharine  McGee,  the  complainant,  was  a  party 
to  the  foreclosure  suit,  and  is  bound  by  it.  While  that  decree, 
and  the  sale  and  conveyance  under  it,  remain  in  force,  she 
cannot  contest  the  title  of  the  purchaser. 

Catharine  McGee  was  not  only  a  party  to  the  foreclosure 
suit,  and  bound  by  the  decree,  but  she  filed  an  answer,  claim- 
ing to  have  her  life  estate  in  the  lot  devised  to  her  by  her 
husband,  recognized  and  protected.  By  her  answer  she  avers 
that  the  house  and  lot  devised  to  her  as  lot  number  two  hun- 
dred and  twenty,  on  Railroad  avenue,  is  the  same  house  and 
lot  described  in  the  Van  Vorst  mortgage  as  lot  number  twelve, 
and  that  the  house  and  lot  devised  to  Hugh  McGee,  as  lot 
number  two  hundred  and  eighteen,  on  Railroad  avenue,  is 
the  same  house  and  lot  mentioned  and  described  in  the  Van 
Vorst  mortgage  as  lot  number  thirteen.  She  now  asks  re- 
lief upon  the  ground  that  the  answer  is  erroneous  in  stating 
that  those  lots  are  identical,  and  that,  in  fact,  the  lot  devised 
to  her  is  larger  than  lot  number  twelve,  and  that  the  lot  con- 
veyed to  Smith  is  less  than  lot  number  thirteen.  Whether 
the  lots  are,  in  fact,  identical,  is  a  disputed  fact  in  this  case. 
But  admitting  that  they  are  different,  and  that  the  allegation 
in  the  answer,  of  their  identity,  is  a  mistake,  Catharine  Mc- 
Gee cannot,  in  equity,  be  relieved  against  the  title  of  Smith, 
on  the  ground  of  that  mistake.  She  is  estopped  from  deny- 
ing the  truth  of  her  answer.  If  there  were  no  other  ground 
of  defence,  Smith  would  be  presumed,  as  against  the  claim 
of  Catharine  McGee,  to  have  purchased  upon  the  faith  of 
her  answer,  and  in  reliance  upon  the  truth  of  its  statements. 
She  cannot  gainsay  her  own  statements  to  the  prejudice  of 
his  title. 

The  injunction  cannot  be  continued  for  the  mere  purpose 
of  restraining  a  naked  trespass,  nor  for  the  purpose  of  quiet- 
ing the  possession  of  the  complainant,  where  she  shows  no 
right  to  the  premises  in  dispute.     2  Eden  on  Inj.  390. 

The  filing  of  exceptions  to  the  answer  constitutes  no  ob- 
jection to  the  dissolution  of  the  injunction,  if  the  equity  of 
the  bill  upon   which  the  injunction  rests   has  been   fully  an- 


OCTOBER  TERM,  18G3.  467 

McGee  v.  Smith. 

svvered.     1   Barb.   Ch.  Pr.  642;  Livingdon  v.  Livingston,  4 
Paige  111 ;  Robert  v.  Hodges,  ante, p.  299. 

The  exceptions,  so  far  as  they  relate  to  the  points  of  the 
case  upon  which  the  injunction  rests,  are  formal,  rather  than 
substantial.  It  is  obvious  that  the  case  made  by  the  bill,  i? 
not  in  accordance  with  the  truth  and  facts  as  they  really 
exist,  and  that  all  the  complainant's  equity  is  fully  denied  by 
the  answer. 

The  injunction  must  be  dissolved. 


C^SES 


ADJUDGED   IN 


THE  COURT  OF  CHANCERY 

or  THE  STATE  OF  NEW  JERSEY, 

FEBRUARY  TERM,  1864. 


"William  D.  Giveans  vs.  William  McMurtey  and  others. 

1.  A  party  who  comes  into  a  court  of  equity  for  relief  against  a  judg- 
ment or  other  security,  on  the  ground  of  usury,  will  only  be  relieved  upon 
paying  what  is  really  due  upon  such  security. 

2.  Where  a  party,  as  security  for  money  loaned,  has  taken  an  assign- 
ment of  a  pre-existing  judgment  against  the  borrower,  and,  as  a  further 
security  for  the  same  debt,  has  also  taken  a  bond  and  mortgage ;  a  decree  of 
this  court  declaring  the  bond  and  moi'tgage  usurious  and  void,  will  not 
avail  the  debtor  in  a  bill  for  relief  to  have  the  judgment  declared  satisfied 
of  record,  the  assignment  being  untainted  with  usury. 

3.  The  evidence  of  a  co-defendant  is  not  rendered  incompetent  by  the  fact 
that  no  order  was  made  for  his  examination.  Since  the  act  of  1859,  {Nix. 
Dig.  928,  |  34,)  removing  the  dipqualification  of  interest  in  a  witness,  as  a 
party  or  otherwise,  no  order  for  his  examination  is  necessary. 

4.  Nor  is  it  any  objection  to  the  competency  of  a  co-defendant  to  tes- 
tify, that  he  has  not  answered  the  bill,  but  has  suifered  a  decree  pro  con- 
fesso  against  him.  The  complainant  may,  at  his  discretion,  require  him  to 
answer.  But  if  he  do  not,  the  defendant,  by  failing  to  answer,  cannot  de- 
prive his  co-defendant  of  his  testimony,  or  disqualify  himself  as  a  witness 
in  th.e  cause, 

McCarter,  for  complainant. 

Two  points  are  made  by  the  original  bill. 

468 


FEBRUARY  TERM,  1864.  469 

Giveans  v.  McMurtry  et  al. 

1.  That  the  judgments  are  kept  on  foot  after  being  paid, 
without  the  consent  of  the  defendant  in  execution. 

2.  That  they  were  taken  as  security  for  an    usurious  debt. 
Tlie  answer  of  McMurtry  denies   that  the  judgments  M'ere 

satisfied,  and  alleges  that  they  were  taken  as  security  for  the 
debt  for  which  the  mortgage  was  given,  but  not  as  collateral 
to  the  mortgage. 

The  su})plemental  bill  sets  up  that  the  bond  and  mortgage 
were,  by  a  decree  of  this  court,  adjudged  null  and  void,  and 
claims  the  benefit  of  such  proceedings. 

Neither  original  nor  supplemental  bill  rests  the  complain- 
ant's claim  to  relief  on  the  ground  of  usury.  That  fact  is 
stated,  but  the  decree  is  not  prayed  on  that  ground.  The 
evidence  shows  that  in  fact,  the  claim  of  the  plaintiff  in  exe- 
cution was  satisfied  in  full  ;  that  the  mortgage  was  given  be- 
fore the  assignment  was  made  ;  and  that  the  judgments  ought 
to  have  been  satisfied  of  record.  No  assignment  was  agreed 
for,  or  intended. 

If  the  judgments  were  assigned  in  pursuance  of  the  under- 
standing of  the  parties,  it  was  a  mere  collateral  security  to 
the  mortgage.  That  security  has  been  pronounced  null  and 
void. 

J.  Whitehead,  for  defendant. 

The  complainant's  whole  claim  rests  upon  a  charge  of  usury 
in  the  mortgage  debt,  and  on  the  ground  that  the  assignnaent 
was  made  without  the  complainant's  knowledge  or  consent. 

The  consent  of  tiie  defendant  in  execution  was  not  neces- 
sary to  a  valid  assignment  of  the  judgment. 

1.  Did  McMurtry  obtain  the  assignment  in  good  faith,  as 
security  for  money  advanced  ? 

No  fraud  is  charged.  The  facts,  that  the  money  was  ob- 
tained from  McMurtry,  that  it  was  paid  directly  to  the  plain- 
tiff in  execution,  and  that  the  judgment  was  assigned  as  a 
security  for  the  money  so  advanced,  are  clearly  established  by 
the  evidence. 


470  CASES  IN  CHANCERY. 

Giveaiis  v.  McMurtry  et  al. 

2.  The  assignment  of  the  judgments  was  taken  as  the  pri- 
mary security  for  the  money  so  advanced. 

There  was  no  search  for  encumbrances  upon  the  property, 
prior  to  the  date  of  the  mortgage.  If,  therefore,  the  mort- 
gage is  usurious,  the  assignment  of  the  judgment  is  in  no  wise 
tainted  with  the  usury. 

A  prior  existing  debt,  untainted  with  usury,  is  not  affected 
by  the  existence  of  usury  in  any  subsequent  contract.  Gray 
V.  Fowler,  1  H.  Black.  463  ;  Fearsall  v.  Kingsland,  3  Edw. 
Ch.  R.  195  ;  Bush  v.  Livingston,  2  Caiyies'  Cases  in  Error, 
6^  ;  Donnington  v.  Meeker,  3  Stockt.  362. 

The  complainant,  who  asks  equity,  must  do  equity  before 
relief  will  be  granted.  Fanning  v.  Dunliam,  5  Johns.  Ch. 
B.  122;  3Iorga7i  v.  Schermerhorn,  1  Paige  544 ;  Beeves  v. 
Cooper,  1  Beas.  223,  498 ;  Miller  v.  Ford,  Saxton  361  ;  Fitz- 
roy  V.  Gwillim,  1  Burn/.  &  East  153. 

The  Chancellor.  Iu  the  year  1855,  a  judgment  at  law 
and  a  decree  iu  equity  were  recovered  against  the  complain- 
ant, Giveans,  amounting  to  over  $3200,  upon  which  executions 
were  issued  and  placed  in  the  hands  of  the  sheriff  of  Sussex. 
On  the  twenty-fifth  of  February,  1856,  the  complainant  pro- 
cured for  the  defendant,  McMurtry,  through  the  agency  of 
David  Ryerson,  the  sum  of  $3000,  which,  together  with  the 
balance  over  that  amount,  due  on  the  judgments,  were  paid 
to  the  respective  plaintiffs,  and  the  sheriff's  execution  fees 
were  satisfied.  On  the  same  day  a  bond  and  mortgage  for 
$3000,  payable  iu  three  years,  were  given  by  Giveans  to 
McMurtry,  and  by  assignments  of  even  date,  the  judgments 
were  assigned  to  him.  In  October,  1858,  the  real  estate  of 
the  defendant  in  execution  was  advertised  for  sale  by  the 
sheriff,  at  the  instance  of  McMurtry,  who  claimed  to  be  the 
assignee  of  the  judgments,  in  order  to  obtain  satisfaction  of 
the  sum  of  $3000  advanced  by  him.  Giveans  thereupon 
filed  his  bill  iu  this  court,  alleging  that  McMurtry  claimed 
to  hold  by  assignment,  the  judgments  as  collateral  security 
for  the  payment  of  the  bond  and  mortgage  ;  that  no  such  as- 


FEBRUARY  TERM,  1864.  471 

Giveans  v.  McMurtry  et  al. 

signments  had  been  made,  or  if  made,  they  were  without  the 
consent  and  against  the  will  of  the  complainant ;  and  that 
the  judgments  were  paid  and  satisfied  in  full  by  the  defend- 
ant in  execution.  The  bill  also  charges,  that  if  the  judgments 
and  executions  were  assigned  to  McMurtry,  the  property 
levied  on  could  not  be  sold  until  the  mortgage  became  due. 
It  also  alleges  that  the  loan  was  made  at  a  usurious  rate  of 
interest,  being  in  reality  the  money,  not  of  McMurtry  but 
of  Ryerson,  who  had  charged  and  received  §300  for  making 
the  loan. 

The  bill  prays  that  the  judgments  may  be  satisfied  of 
record,  and  that  the  assignments,  if  any  exist,  may  be  de- 
livered up  to  be  cancelled. 

Tiie  defendant,  McMurtry,  by  his  answer,  claims  that  the 
loan  was  made,  and  the  money  advanced  by  him,  at  the  in- 
stance of  Ryerson,  who  acted  on  behalf  of  Giveans,  upon 
the  security  as  well  of  the  judgments  as  of  the  bond  and 
mortgage;  that  the  amount  due  upon  the  judgments  and  ex- 
ecutions was  paid,  not  by  Giveans,  but  by  McMurtry,  directly 
to  the  plaintiffs  in  execution;  and  that  the  judgments  and 
executions  were  never  satisfied,  nor  intended  so  to  be,  but 
were  assigned  by  the  plaintiffs  in  execution  to  McMurtry, 
in  pursuance  of  an  agreement  with  Giveans,  as  security  for 
the  loan  of  §3000  made  to  him  by  McMurtry. 

That  the  judgments  and  executions  were  assigned  to  Mc- 
Murtry is  fully  established.  The  deeds  of  assignment  exe- 
cuted by  the  plaintiflfe,  are  produced  in  evidence,  and  their 
formal  execution  proved  by  the  subscribing  witnesses.  No 
fraud  or  circumvention  is  alleged  or  shown  in  the  procure- 
ment of  these  assiu;nments.  The  alleo-ation  of  the  bill  is 
that  the  judgments  were  paid  and  satisfied  in  full  by  the 
complainant,  and  that  the  assignments  were  made  without 
his  consent  and  against  his  will.  The  substance  of  the  alle- 
gation is,  that  the  loan  by  McMurtry  was  made  upon  the 
security  of  the  bond  and  mortgage  alone,  and  that  the  judg- 
ments were  in  fact  satisfied,  and  ought  to  have  been  can- 
celled. 


472  CASES  IN  CHANCERY. 

Giveans  v.  McMurtry  et  al. 

The  only  evidence  in  support  of  this  allegation  is  that  of 
the  complainant  himself,  who  testifies  that  he  heard  nothing 
of  the  assignments,  and  never  agreed  to  them  ;  that  the  loan 
in  fact,  was  made  solely  upon  the  security  of  the  bond  and 
mortgage.  On  the  other  hand,  Mr.  Ryerson,  by  whose 
agency  the  loan  was  procured,  testifies  that  McMurtry  was 
to  have  as  security  for  his  money,  an  assignment  of  the  judg- 
ments, and  a  mortgage  from  the  Messrs.  Giveans.  They  both 
agreed  to  give  him  the  security.  The  circumstances  attend- 
ing the  transaction,  strongly  corroborate  the  testimony  of 
Mr.  Ryerson.  The  $3000  loaned  by  McMurtry  was  not  paid 
to  Giveans,  nor  were  the  judgments  paid,  by  him.  He 
paid  the  sheriff's  fees,  and  reduced  the  amount  due  on  the 
judgments  to  $3000.  That  sum  was  paid  by  Ryerson  for 
McMurtry,  into  the  hands  of  the  attorney  of  the  plaintiffs 
in  execution,  upon  the  express  stipulation  that  the  judgments 
should  be  assigned  to  McMurtry.  Mr.  Thompson,  the  attor- 
ney, testifies  that  Mr.  Ryerson  and  the  Messrs.  Giveans  came 
together  to  his  office,  and  stated  that  the  judgments  were  to 
be  assigned  to  McMurtry.  The  assignments  were  then 
drawn,  and  in  a  few  days  returned  executed.  The  judgments 
were  assigned  as  security  for  the  money.  They  were  ar- 
ranged to  be  assigned,  and  the  assignments  were  drawn  at 
the  same  time  the  mortgage  was  executed.  The  assignments 
bear  even  date  with  the  bond  and  mortgage.  Giveans  was 
present  when  Ryerson  stated  that  the  judgments  were  to  be 
assigned,  and  when  the  stipulation  to  procure  the  assign- 
ment was  executed.  The  attorney  of  the  plaintiffs  in  execu- 
tion, neither  drew  nor  acknowledged  the  mortgage.  The 
only  jiretence  for  the  parties  going  to  his  office,  must  have 
been  to  ensure  the  assignment  of  the  judgments.  The  money 
was  paid  into  his  hands  upon  his  stipulating  to  have  the  as- 
signments executed  by  his  clients.  This  was  before  the  bond 
and  mortgage  were  executed.  The  evidence  i^  plenary  that 
the  assignments  were  made,  and  the  judgments  were  to  be 
kept  alive  as  security  for  the  money  advanced  by  McMurtry. 


FEBRUARY  TERM,  1864.  473 

Giveans  v.  McMurlry  et  al. 

Another  ground  of  relief  suggested  in  the  original  bill  is, 
that  the  loan  from  McMurtry  to  Giveans  was  usurious. 

After  the  commencement  of  the  suit,  a  bill  was  filed  for  the 
foreclosure  of  the  bond  and  mortgage,  which  were  given  co- 
temporaneously  with  the  assignments  of  the  judgments  to  se- 
cure the  loan.  Giveans,  by  his  answer,  set  up  usury  in  the 
mortgage  as  a  defence  to  the  bill.  The  mortgage  was  decreed 
to  be  usurious,  and  the  bill  was  dismissed.  The  complainant 
thereupon  filed  a  supplemental  bill  in  this  cause,  setting  up 
that  decree  as  ground  of  relief  in  this  cause. 

Irrespective  of  the  decree  in  the  foreclosure  suit,  it  is 
clear  that  the  complainant  is  not  entitled  to  relief  against  the 
judgments  on  the  ground  of  usury.  A  complainant  who 
comes  to  a  court  of  equity  for  relief  against  a  judgment  or 
other  security  on  the  ground  of  usury,  will  not  be  relieved, 
unless  upon  the  equitable  terms  of  paying  what  is  really  due 
to  the  defendant.  Tar/lor  v.  Bell,  2  Vei'n.  171  ;  Scott  v. 
Kesbit,  2  Bro.  Cli.  i?.  641  ;  Henhle  v.  Royal  Exchange  Ass. 
Co.,  1  Vesey,  sen.  320  ;  Fanning  v.  Dunham,  5  Johns.  Ch. 
M.  122;  Miller  v.  Ford,  Saxton  364;  Ware  v.  Thompson's 
Adm'rs,  2  Beas.  67. 

The  equity  cases,  says  Chancellor  Kent,  speak  one  uniform 
language,  and  I  do  not  know  of  a  case  in  which  relief  has 
ever  been  afforded  to  a  plaintiff  seeking  relief  against  usury, 
by  bill,  upon  any  other  terms. 

In  1856,  the  complainant's  property  being  about  to  be 
sold  under  executions,  McMurtry  advanced  $3000  for  the 
relief  of  the  complainant,  and  took  an  assignment  of  the 
judgments  and  executions,  as  a  security  for  the  repayment  of 
the  loan.  The  complainant  has  since  held  and  enjoyed  his 
property  without  the  return  of  any  portion  of  the  principal 
or  interest.  The  judgments  remain  unsatisfied.  If  this 
court  restrain  the  defendant  from  proceeding  at  law  on  the 
ground  of  usury,  it  will  only  be  upon  the  complainants  pav- 
ing the  amount  of  principal  and  interest  bona  fide  due  to 
McMurtry.  That  is  all  that  he  claims  to  recover.  He  is 
entitled   to  have  from  the  complainants  the  sum  advanced, 


474  CASES  IX  CHANCERY. 

Giveans  v.  McMurtry  et  al. 


with  interest.  If  the  case  stood  upon  the  original  bill  and 
answer,  tliere  would  be  no  room  to  question  the  application 
of  the  principle,  and  that  the  coni[)lainant  could  have  no 
relief. 

The  case  is  in  no  wise  altered  by  the  fact,  that  the  con- 
tract for  the  loan  of  the  money  has,  by  a  decree  of  this  court, 
been  pronounced  usurious,  and  the  mortgage  given  as  secu- 
rity, declared  void.  Nor  can  the  conjplainant  escape  the 
application  of  the  principle,  by  a  general  allegation  that  the 
court,  by  its  decree,  pronoujiced  the  contract  void,  without 
disclosing  by  his  pleading  that  the  decree  was  made  solely 
upon  the  ground  of  usury.  It  appears  by  the  decree  that  the 
loan  was  pronounced  usurious,  and  the  mortgage  security 
therefore  void. 

The  decree  has,  in  fact,  no  reference  whatever  to  the  charge 
of  usury  set  up  in  the  present  bill.  That  charge  is  utterly 
disproved  by  the  evidence.  The  decree  declaring  that  the 
bond  and  mortgage  are  usurious,  upon  one  ground,  cannot 
establish  the  fact  of  usury  against  the  judgments,  on  another 
and  different  ground.  It  is  not  pretended  that  these  judg- 
ments are  usurious.  They  are  admitted  to  have  been  valid 
and  subsisting  judgments.  The  complainant's  ground  of 
complaint  is,  that  they  were  paiid  and  satisfied.  That  charge 
has  been  disproved.  They  were  duly  assigned  for  their  full 
value,  by  the  plaintiffs  in  the  judgments,  to  McMurtry,  the 
defendant.  They  are  security  only  for  the  amount  actually 
advanced  by  McMurtry,  and  remaining  due  on  the  judgments, 
with  legal  interest.  No  usurious  interest  has  been,  or  can  be, 
recovered  upon  them.  The  assignee  of  the  judgments  seeks 
to  enforce  them,  not  by  virtue  of  any  usurious  contract  made 
with  Giveans,  the  defendant  in  execution,  but  by  virtue  of  a 
contract  with  the  plaintiffs. 

So  far  as  this  case  is  concerned,  the  fact  of  usury  is  not 
established.  But  admitting  the  ustuy  to  have  been  fully 
proved,  the  complainant,  in  e(]uity,  is  bound  to  pay  the  prin- 
cipal and  interest  really  and  bo)ia  fide  due  u{)on  the  judg- 
ment.     Having   made   no   such   offer,   ho   is   entitled    to    no 


FEBRUARY  TERM,  1864.  475 

Hudson  V.  Trenton  Locomotive  and  Machine  Manufacturing  Co. 

relief  at  the  hands   of  this  court.     A   party  asking  equity 
must  do  equity. 

The  evidence  of  a  co-defendant  is  not  rendered  incompe- 
tent by  the  fact  that  no  order  was  made  for  his  examination. 
When  witnesses  were  disqualified  on  the  ground  of  interest, 
a  defendant  havMug  either  no  interest  in  tiie  event  of  the 
suit,  or  not  being  interested  in  the  whole  of  the  matters  em- 
braced in  the  suit,  might  have  been  examined  as  to  those 
matters  in  which  he  had  no  interest.  This  was  done  by  or- 
der of  the  court.     2  DanieWs  Ck  Pr.  1036,  1038,  1042. 

But  since  the  act  of  1859  has  removed  tiie  disqualification 
of  interest  in  the  witness,  as  a  party  or  otherwise,  no  order 
for  his  examination  has  been  deemed  necessary.  The  same 
practice  was  adopted  under  the  act  of  1855,  though  the  rule 
of  July  1st,  1858,  required  that  if  the  plaintiff  or  petitioner 
desired  to  avail  himself  of  the  benefit  of  the  second  section 
of  that  act,  he  should  be  examined  before  any  other  witness 
should  be  examined  in  the  cause,  and  withiu  twenty  days 
after  issue  joined. 

Nor  is  it  any  objection  to  the  competency  of  a  co-defendant 
to  testify,  that  he  has  not  answered  the  bill,  but  has  suffered 
a  decree  pro  confesso  against  him.  The  complainant  may, 
at  his  discretion,  require  him  to  answer.  But  if  he  do  not, 
the  defendant,  by  failing  to  answer,  cannot  deprive  his  co- 
defeudaut  of  his  testimony,  or  disqualify  himself  as  a  wit 
ness  in  the  cause. 

The  bill  must  be  dismissed. 

Affirmed,  2  C.  E.  Or.  510. 


Nicholas  C.  Hudsox  vh.  The  Trenton  LocoiioTiVE  and 
Machine  Manufacturing  Company. 

1.  Upon  a  bill  for  an  account,  tlie  only  materiiJ  evidence  upon  the 
original  hearing,  is  that  whicli  conduces  to  prove  the  complainant's  right 
to  an  account.  The  ordinary  decree  is  that  an  account  shall  be  taken. 
Evidence  as  to  the  particular  items  of  the  account  is  irrelevant,  and,  in 
strictness,  inadmissible  at  this  stage  of  the  cause. 


476  CASES  IN  CHANCERY. 

Hudson  V.  Trenton  Locomotive  and  Machine  Manufacturing  Co. 

2.  As  a  general  rule,  the  court  will  not,  at  the  original  hearing,  examine 
or  decide  whether  particular  items  of  the  account  shall  or  shall  not  be 
allowed. 

3.  Tlie  court  mu?t,  it  would  seem,  settle  the  construction  and  efFecl  of 
agreements  between  the  parties,  by  which  their  mutual  dealings  were  regu- 
lated, and  by  which,  consequently,  the  account  must  be  controlled. 

4.  The  court  will  give  special  directions  to  the  master  as  to  the  manner 
of  taking  the  account,  and  the  principles  by  wliich  he  should  be  governed 
in  taking  it. 

5.  The  decree  must  direct  to  what  matters  the  account  sliall  extend,  and 
in  decreeing  a  general  account,  special  directions  will  be  rendered  proper 
and  necessary  by  the  particular  circumstances  of  the  case. 

6.  Where  the  evidence  has  been  taken  on  bo*h  sides  before  the  hearing, 
without  objection,  it  may  be  used  by  the  court,  so  far  as  may  be  necessary, 
in  giving  directions. 


J,  S.  Aitkin,  for  complainant. 

The  bill  is  for  an  account  under  a  written  contract. 

It  involves  the  construction  of  the  contract,  the  value  of 
the  work  done  and  services  rendered,  and  asks  that  the  de- 
fendant may  be  decreed  to  pay  the  amount  found  due,  and 
for  such  other  relief  as  the  complainant  maybe  entitled  to. 

The  testimony  has  been  taken  in  full  by  both  parties,  and 
the  case  is  now  ready  for  final  decree. 

Beasley,  for  defendants. 

The  only  order  that  can  now  be  made  is  for  an  account, 
and  to  that  we  do  not  object.  2  DanieWs  Ch.  Pr.  997  ; 
Ciirsus  Cancel.  341 ;    Greslej/s  Eq.  Ev.  168. 

The  Chancellor.  Upon  a  bill  for  an  account,  the  only 
material  evidence  upon  the  original  hearing  is  that  which 
conduces  to  prove  the  complainant's  right  to  an  account. 
The  ordinary  decree  is  that  an  account  shall  be  taken.  Evi- 
dence-as to  the  particular  items  of  the  account  is  irrelevant 
at  this  stage  of  the  cause.  2  DanieWs  Ch.  Pr.  997 ;  Gres- 
ley's  Eq.  Ev.  168;  Walker  v.  Woodward,  1  Russ.  110;  Laio 
V.    Hunter,   Ibid.    100 ;    Tomlin   v.    Tomlin,   1    Hare   236 ; 


FEBRUARY  TERM,  ]864.  477 

Hudson  V.  Trenton  Locomotive  and  Machine  Manufacturing  Co. 

Seaton's  Decrees  42,  45  ;  Duboxirg  de  St.  Colombe's  Heirs  v. 
The  United  States,  7  Peters  626. 

These  cases  settle  the  practice  that  the  court  will  not,  at 
the  original  hearing,  as  a  general  rule,  examine  or  decide 
whether  particular  items  of  the  account  shall  or  shall  not  be 
allowed,  and  that  evidence  for  that  pur[)Ose,  in  strictness,  is 
inadmissible. 

But  the  principle  is  not  of  universal  application,  and  must 
depend  in  some  measure  upon  the  nature  of  the  jileadings. 

By  the  ancient  practice  special  directions  were  usual  in 
decrees  for  account.  Bacon's  Ordinances  50 ;  Bewnes'  Orders 
in  Chan.  23,  80 ;  Tothill's  Proceed.  48. 

Instances  are  not  wanting,  w'here  the  decree  ordering  tlie 
account  to  be  taken,  has  directed  the  allowance  of  particular 
items.  Thus,  in  Smith  v.  Wilkinson,  the  master  was  directed, 
in  taking  the  account,  to  charge  the  defendant  with  the  sum 
of  £8000,  borrowed  by  him  from  the  testator's  estate.  2  New- 
land's  Ch.  Pr.  335  ;  Seaton's  Decrees  46. 

And  in  Consequa  v.  Fanning,  3  Johns.  Ch.  R.  590,  the 
decree  contains  specific  directions  as  to  various  items  with 
which  the  defendants  should  be  charged  by  the  master  in 
taking  the  account. 

The  more  modern  cases  would  seem  to  exclude  these  direc- 
tions as  to  what  items  of  the  account  should  or  should  not  be 
allowed  ;  but  they  do  not  exclude  special  directions  to  the- 
master  as  to  the  manner  of  taking  the  account,  or  the  prin-. 
ciples  by  which  he  should  be  governed  in  taking  it.  The- 
court  must,  it  should  seem,  settle  the  constructit)n  and  efff^ct 
of  agreements  between  the  parties,  by  which  their  rantuali 
dealings  were  regulated,  and  by  which,  consequenfelly,,  tbiO 
account  must  be  controlled. 

Thus  in  Sharp  v.  3Iorroui,  6  Monroe  300,  it  is  declaFct?, 
that  in  referring  partnership  accounts  to  a  commissioner,,  the 
court  should  settle  the  construction  of  the  articles  of  partner- 
siiip,  and  decide  what  kind  of  accounts  come  within. the  part- 
n'^rshii).  and  lay  down  the  principles  by  which  tl^e.GOOiniis- 
sioner  should  be  governed. 

.Vol.  I.  2  G 


478  CASES  IN  CHANCERY. 

Fluke  V.  Ex'rs  of  Fluke  et  al. 

And  in  Remsen  v.  JRemsen,  2  Johns.  Ch.  R.  501,  Chan- 
cellor Kent  lays  it  down  as  a  general  rule,  that  orders  of  re- 
ference should  specify  the  principles  on  which  the  accounts 
are  to  be  taken,  or  the  inquiry  proceed,  as  far  as  the  court 
shall  have  decided  thereon. 

The  decree  must  direct  to  what  matters  the  account  shall 
extend.  And  in  decreeing  a  general  account,  special  direc- 
tions will  be  rendered  proper  and  necessary  by  the  particular 
circumstances  of  the  case.  The  principle  is  constantly  re- 
cognized and  acted  upon.  2  Smith's  Ch.  Pr.  H2 ;  Hoffman's 
Ch.  Pr.  {Appendix)  169,  No.  202  ;  Izard  v.  Bodine,  1  Stoclt. 
311. 

If  either  of  the  points  upon  which  the  complainant  now 
asks  the  determination  of  the  court,  involves  the  legal  con- 
struction of  the  contract  between  the  parties,  by  which  the 
statement  of  the  account  will  be  materially  aifecteJ,  or  the 
proper  mode  of  stating  the  account,  or  the  subject  to  which 
the  investigation  shall  extend,  it  may  be  proper  that  the 
direction  should  now  be  given.  It  may  save  unnecessary 
expense  and  delay  in  the  subsequent  stages  of  the  cause. 

There  can  be  no  objection  on  the  ground  of  the  incom- 
petency of  the  testimony.  The  evidence  upon  both  sides  has 
been  taken  without  objection.  It  is  now  before  the  court 
and  may  be  used,  so  far  as  may  be  necessary,  in  giving  any 
direction  proper  to  be  given  at  this  stage  of  the  cause. 


John  Fluke  vs.  The  Executors  of  Fluke  and  others. 

1.  A  direction  by  a  testator  "that  all  the  rest  and  residue  of  his  estate 
of  what  kind  soever  there  might  be  at  the  time  of  his  death,"  should  be  con- 
verted into  money  by  his  executors,  &c.,  extends  to  and  inclades  such  real 
estate  as  he  may  have  acquired  after  the  making  of  the  will,  and  such  land 
is  subject  to  the  power  of  sale  conferred  upon  the  executors. 

2.  Until  the  sale  be  made,  the  legal  title  descends  to  and  vests  in  the 
heirs-at-law  of  the  testator,  as  tenants  in  common. 


FEBRUARY  TERM,  1864.  479 

Fluke  V.  Ex'rs  of  Fluke  et  al. 

3.  Tlie  heir-at-law  takes  the  legal  title  charged  with  the  trusts  created 
by  the  will.  Equity  will  not  interfere  with  the  execution  of  the  trusts  by 
the  executors.  It  regards  as  actually  performed,  tliat  which  is  directed  to 
be  done. 

4.  Lands  directed  by  the  testator  to  be  sold  and  converted  into  money, 
and  the  proceeds  distributed  either  amo.ig  the  heirs  or  other  legatees,  is 
regarded  as  a  gift  of  money. 

5.  AVherethe  whole  beneficial  interest  in  the  land  directed  to  be  conver- 
ted into  money,  belongs  to  the  person  or  persons  for  whose  use  it  is  given, 
equity  will  not  compel  the  trustee  to  execute  the  trust  against  the  wishea 
of  the  cestui  que  trust,  but  will  permit  him  to  take  the  land,  if  he  elect  to  do 
60  beforfe  the  conversion  has  actually  been  made.  But  where  there  are 
several  cestui  que  trusts  taking  different  interests  under  the  will  from  what 
they  would  do  as  heirs-at-law,  there  is  no  case  for  the  application  of  the 
doctrine  of  election,  and  the  executor  must  perform  the  trust  created  by 
the  will. 

Leport,  for  complainant. 
Thompson,  for  defendants. 

The  Chancellor.  The  bill  is  filed  for  the  partition  of  a 
tract  of  land  in  the  connty  of  Morris,  of  which  John  Fluke, 
the  father  of  the  complainant,  died  seized. 

The  complainant  claims  title  to  one-fifth  of  the  tract,  as 
one  of  the  heirs-at-law  of  his  father.  The  father  died  on  the 
1st  of  August,  1862,  leaving  a  last  will  and  testament,  duly 
executed  to  pass  real  estate.  By  his  will,  bearing  date  on 
the  15th  day  of  December,  1856,  and  by  a  codicil  thereto, 
the  testator,  after  certain  specific  bequests,  ordered  and  di- 
rected, that  "all  the  rest  and  residue  of  his  estate,  of  what 
kind  soever  there  might  be  at  the  time  of  his  death,"  should 
be  converted  into  money  by  his  executors,  and  one-fifth  part 
thereof  paid  to  each  of  his  four  children  then  living,  and  the 
remaining  one-fifth  to  the  four  children  of  a  deceased  son  of 
the  testator,  to  be  divided  between  them  in  unequal  shares, 
viz.  one  equal  half  thereof  to  the  grandson,  and  the  other 
half  equally  between  three  grand-daughters. 

The  land  in  question  was  conveyed  to  the  testator  on  the 
14th  of  October,  1858,  after  the  date  of  the  will  and  of  the 
codicil. 


480  CASES  IN  CHANCERY. 

Fluke  V.  Ex'rs  of  Fluke  et  al. 

Under  the  act  of  1851,  (Nix.  Dig.,  p.  917,  §  3,)  real  estate 
acquired  by  a  testator  after  tlie  making  of  his  will,  is  subject 
to  the  disposition  made  by  the  will,  either  by  devise  or  by 
poM'er  of  sale.  The  testamentary  disposition  extends  to  all 
the  estate  of  whatever  kind  which  the  testator  might  own  at 
the  time  of  his  death,  and  necessarily  includes  the  land  in 
question.  The  rights  of  the  complainant  are,  therefore,  in 
no  wise  affected  by  the  fact  that  the  land  was  acquired  by 
the  testator  after  the  making  of  his  Mill. 

The  will  contains  no  actual  dis})osition  of  the  lands,  but 
confers  upon  the  executors  a  naked  power  of  sale.  Until  the 
gale  be  made,  the  legal  title  descends  to,  and  vests  in  the 
heirs-at-law  of  the  testator.  The  complainant  is,  therefore, 
seized  in  fee,  as  tenant  in  common  with  the  other  heirs  of 
his  father,  of  the  one  equal  fifth  part  of  the  land  in  question. 
Herbert  v.  Executor  of  Tuthill,  Saxton  141 ;  Bergen  v.  Ben- 
nett, 1  Caiyies'  Cases  in  Error  16  ;  Gest  v.  Flock,  1  Green'' s 
Ch.  R.  108,  113. 

But  the  heir-at-law  takes  the  legal  title  charged  with  the 
trusts  created  by  the  will.  The  land  is  directed  to  be  con- 
verted into  money  by  the  executors,  and  the  proceeds  to  be 
distributed  in  the  mode  designated  by  the  testator.  Equity 
will  not  interfere  with  the  execution  of  the  trusts  by  tiie 
executors.  It  regards  as  actually  performed  that  which  is 
directed  to  be  done.  Lands  directed  by  the  testator  to  be 
8old  and  converted  into  money,  and  the  proceeds  distributed 
either  among  the  heirs  or  other  legatees,  is  regarded  as  a  gift 
of  money.  Fletcher  v.  Aslihurner,  1  Bro.  Ch.  Cases  497  ; 
Craig  v.  Leslie,  3  Wheaton  563. 

It  is  true  that  where  the  whole  beneficial  interest  in  the. 
land  thus  directed  to  be  converted,  belongs  to  the  person  or 
persons  for  whose  use  it  is  given,  equity  will  not  compel  the 
trustee  to  execute  the  trust  against  the  wishes  of  the  cestui 
que  trust,  but  will  permit  him  to  take  the  land,  if  he  elect  to 
do  so  before  the  conversion  has  actually  been  made.  Gest  v. 
Flock,  \    Greenes   Ch.  R.   115;    Craig  v.  Leslie,  Z  Wheaton 


FEBRUARY  TERM,  1864.  481 

Demarest  v.  Berry. 

563  ;   Osgood  v.  Franklin,  2  Johns.   Ch.  R.  21 ;  Story's  Eq. 
Jur.,  §  793. 

But  the  whole  beneficial  interest  in  the  land  sought  to  be 
sold,  is  not  in  the  complainant.  The  other  cestui  que  trusts 
are  interested  in  the  due  execution  of  the  trusts  created  by 
the  will.  Tiiey  have  not  joined  in  the  prayer  for  partition. 
The  devisees  of  one  share  are  infants.  They  take,  moreover, 
as  legatees,  different  interests  under  the  will,  from  what  they 
would  do  as  heirs-at-luw.  It  is  not  a  case,  therefore,  for  the 
application  of  the  doctrine  of  election  ;  nor  does  the  com- 
plainant rest  his  case  upon  this  ground. 

As  the  facts  are  all  ailmitted  upon  the  face  of  the  bill  and 
answer,  no  benefit  can  result  from  a  reference  to  a  master. 
The  bill  must  be  dismissed. 

Cited  in  Romaine  v.  Hendrickson,  9  C.  E.  Gr.  237. 


David  M.  Demarest  and  Nicholas  H.  Jerolemax  vs. 
D^wiD  M.  Berry  and  others. 

1.  If  a  mortgagee  in  possession,  permits  the  mortgagor  to  take  tlie  pro- 
fits of  the  mortgaged  premises,  the  mortgagee  will  be  charged,  in  favor  of 
subsequent  encumbrancers,  with  all  tiie  profits  he  might  have  received. 
So,  if  the  mortgagee  refuses  to  enter,  but  suffers  tlie  mortgagor  to  take  the 
profits  and  to  protect  liis  possession  by  means  of  the  mortgage. 

2.  The  principle  upon  which  the  court  acts  is,  that  if  the  mortgagee  be 
in  possession,  or  act  mala  fide  in  regard  to  subsequent  encumbrancers,  lie 
will  be  charged  not  only  with  all  profits  received,  but  with  all  which,  with- 
out fraud  or  wilful  default,  he  might  have  received  from  the  mortgaged 
premises. 

3.  Where  the  mortgagee  is  not  in  actual  possession  by  himself  or  his 
tenant,  and  has  received  no  part  of  the  profits,  nor  used  his  mortgage  to 
interfere  with  the  claims  of  subsequent  encumbrancers,  or  to  protect  the 
possession  of  the  mortgagor,  he  is  not  chargeable  with  any  part  of  the  profits. 

4.  A  suit  for  foreclosure  upon  each  of  two  mortgages  covering  the  same 
premises,  both  of  which  were  in  the  hands  of  the  complainant  when  the 
first  bill  was  filed,  is  unnecessary  and  oppressive,  and  costs  will  be  allowed 
but  in  one  suit. 

5.  But  where  the  second  bill  was  rendered  necessary  by  the  fact  (discov- 
ered after  the  filing  of  the  first)  that  the  mortgage,  upon  which  the  first 


482  CASES  IN  CHANCERY. 

Demarest  v.  Berry. 

bill  was  filed,  covered  a  part  only  of  the  premises  included  in  the  other 
mortgage,  proceedings  in  the  first  suit  will  be  stayed,  and  the  second  suit 
alone  proceed  to  decree. 


Ogden,  for  complainants. 
Cutler,  for  defendants. 

The  Chancellor.  It  was  admitted  upon  the  argument, 
that  there  is  an  entire  failure  of  evidence  to  support  the  alle- 
gation of  the  answer,  that  one  of  the  complainants'  mortga- 
ges is  without  consideration  and  invalid,  as  against  a  subse- 
quent judgment  creditor.  It  is  also  admitted  that  the  objec- 
tion to  the  bill  for  want  of  proper  parties,  is  not  well  founded. 
The  only  remaining  objection  relates  to  the  mode  of  taking 
the  account. 

The  first  mortgage  upon  the  premises  was  given  to  the 
Mutual  Benefit  Life  Insurance  Company  ;•  the  second,  to  the 
complainants.  Both  mortgages  were  due,  prior  to  June, 
1862.  In  August,  1862,  the  personal  property  of  the  mort- 
gagor was  sold  under  executions  at  law,  and  purchased  almost 
exclusively  by  or  in  behalf  of  Demarest,  one  of  the  complain- 
ants. On  the  twenty-sixth  of  January,  1863,  tiie  mortgaged 
premises  were  also  sold  under  executions  at  law,  and  pur- 
chased by  A.  \y.  Cutler,  one  of  the  judgment  creditors. 
Berry,  the  mortgagor,  continued  to  occupy  the  mortgaged 
premises,  and  to  use  and  enjoy  thereon,  the  personal  property 
bought  by  Demarest,  from  August,  1862,  till  June,  1863, 
when  the  personal  property  was  sold  at  auction,  and  the  mort- 
gagor removed  from  the  premises.  The  judgment  creditor 
now  insists  tiiat  the  complainants,  as  mortgagees  in  posses- 
sion, are  chargeable  with  the  rent  of  the  premises  from  August, 
1862,  or  from  January,  1863,  when  the  judgment  creditor 
acquired  title  to  the  land. 

If  a  mortgagee  in  possession  permits  the  mortgagor  to 
take  the  profits  of  the  mortgaged  premises,  the  mortgagee 
will  be  charged  in  favor  of  subsequent  encumbrancers,  with 


FEBRUARY  TERM,  1864.  483 

Demarest  v.  Berry. 

all  the  profits  he  might  have  received.      Chppr'mg  v.  Cooker 
1   Vern.  270 ;  Bentham  v.  Ilalncourt,  Pree.  in  Chan.  30. 

So  if  the  mortgagee  refuses  to  enter,  but  suffers  the  mort- 
gagor to  take  the  profits,  aiiil  to  protect  liis  possession  by 
means  of  the  mortgage.  Chapman  v.  Tanner,  1  Vern.  267  ; 
Dux  Bucks  V.  Gayer,  Ibid.  257. 

The  principle  upon  which  the  court  acts  is,  that  if  the 
mortgagee  be  in  possession,  or  act  mala  fide  in  regard  to 
subsequent  encumbrancers,  he  will  be  charged  not  only  with 
all  profits  receivetl,  but  with  all  which,  without  fraud  or  wil- 
ful default,  he  might  have  received  from  the  mortgaged 
premises.  Laftm  v.  Swift,  2  Sch.  &  Lef.  655 ;  Harvey  v. 
TiUuU,  Jacob  &  W,  E,  203  ;  Beriiey.  v.  SciveU,  Ibid.  630 ; 
Coote  on  Mortgriges  557  ;  1  Powell  on  Mortgages  {by  Coven- 
try) 291,  note  D;  3  Ibid.  949,  953* 

The  mortgagee  was  not  in  tlie.  actual  possession  of  the 
premises.  He  received  no  rants,  or  profits  therefrom.  The 
mortgagor  remained  in  tlie,  actual  possession  and  enjoyment 
of  tte  piiemiises,  until  Jj,iine,  1863.  The  facts  relied  upon  to 
charge  .tla»e  mortgage^  with  the  profits,  are,  that  he  permitted 
the  fiiOAifgagor  to  rpmain  in  possession,  using  the  personal 
l^raperty  of  the  lUQt'tgagee,  and  to  carry  on  the  business  of 
imaiksng  cider  and. distilling  spirits,  witi^  the  assistance  of  the 
maortgagee,  aud  to  some  exte'at  in  hfe  name.  The  evidence 
^oes  not  show,  that  the  mortgagor  acted  as  the  agent  or  ten- 
ant of  the  mortgagee,  or  that  he  in  any  way  attorned  to  him, 
or  recognized  his  right  to  the  possession  of  the  premises.. 
Nor  was  the  mortgage  used  .to  protect  the  possessitin  of  the- 
mortgagor,  or  to  obstruct  a  recovery  by  the  judgment  credi- 
itor.  Mere  laches  in  the  euforoeraent  of  his  demand,  is  ao 
gvound  to  deprive  the  mortgagee  of  his  iuterosfc. 

The  conduct  of  the  mortgagee  is  recoacilallo  vylfclx  good 
faitli.  It  was  confined  within  the  limits  of  his  legal  right, 
and  may  have  been  prompted  by  a  desire  to  relieve  the  lie^. 
cessities  of  the  mortgagor^  3:'uttiag  upon  it  ti'.e  most  unfa- 
vorable construction,  its  wn  )x\^  consisted  in  protecting,  the- 
personal  property  of  tlio  r  .iort««^agor  from  levy  and  sale  :fj)5^ 


484  CASES  IN  CHANCERY. 

Norcom  v.  Rogers. 

the  satisfaction  of  the  claims  of  judgruent  cvcditors.  In 
Charles  v.  Dunbar,  4  31elG.  493,  it  was  held  (hat  where  a 
formal  ontiy  by  the  mortgagee,  was  to  aid  the  raor(<^«go»'  in 
prolcctiiig  the  produce  of  the  farm  from  sittachn'oiit  by 
other  creditors,  it  did  not  affect  the  question  of  the  mortga- 
gee's liability  for  profits.  The  mortgagee  not  being  in  actual 
possession  by  himself,  or  his  tenant,  having  received  no  part 
of  the  profits,  and  not  having  used  his  mortgage  to  interfere 
with  tJie  claim  of  subsequent  encumbrancers,  or  to  protect  the 
possession  of  the  mortgagor,  is  not  chargeable  with  any  part 
of  the  profits.     The  account  will  be  stated  accordingly. 

The  complainants  have  filed  two  bills  of  foreclosure  upon 
two  mortgages,  both  of  which  were  in  their  hands  when  the 
first  bill  was  filed.  If  both  mortgages  cover  the  same  prem- 
ises, two  suits  were  unnecessary  and  oppressive,  and  the 
complainants  will  be  allowed  costs  but  in  one  suit.  It  is 
understood  that  the  filing  of  the  second  bill  was  rendered 
necessary,  by  the  fact  that  the  mortgage  upon  which  the  first 
bill  was  filed,  covered  a  part  only  of  the  premises  included  in 
the  other  mortgage;  a  circumstance  which  escaped  attention 
at  the  time  of  filing  the  first  bill.  If  this  be  so,  proceedings 
in  the  first  suit  should  be  stayed,  and  the  second  suit  alone 
proceed  to  decree.     The  question  of  costs  will  be  reserved. 

There  must  be  an  order  of  reference,  to  ascertain  the 
amount  due  upon  the  complainants'  mortgages. 


Frederick  Norcom  vs.  Edward  Y.  Rogers. 

1.  A  lunatic  can  sue  only  by  his  committee  or  guardian,  who  is  respon- 
.sible  for  the  conduct  of  the  suit,  or  by  the  Attorney  General  or  next 
friend,  where  the  interests  of  the  guardian  clash  with  those  of  the  lunatic. 

2.  If  a  complainant  appear  upon  the  face  of  the  bill  to  be  a  lunatic,  and 
no  next  friend  or  committee  is  named  in  the  bill,  the  objection  may  be 
raised  by  demurrer,  or  by  motion  to  take  the  bill  from  the  files. 


FEBRUARY  TERM,  1864.  485 


Norcorn  v.  Rogers. 


3.  A  bill  exhibited  by  a  person  of  unsound  mind  should  be  taken  from 
the  files. 

4.  The  bill  in  this  cause  having  been  filed  by  a  limatic,  and  the  defend- 
ant having  demurred,  leave  was  given  to  withdraw  the  demurrer,  and  bill 
ordered  to  be  taken  from  the  files* 


Kingman,  for  complainant. 
Rogers,  pro  se. 

The  Chancellor.  The  bill  in  this  case  was  improvi- 
dently  filed.  It  purports  to  be  exhibited  by  a  party  who  haa 
been  found  to  be  a  lunatic,  in  his  own  name,  against  his 
guardian.  The  commission  has  not  been  superseded,  and  it 
is  not  suggested  that  any  step  has  been  taken  to  avoid  the 
inquisition.  So  far  as  appears  by  the  bill,  it  is  now  standing 
and  in  fidl  force. 

A  lunatic  sues  only  by  his  committee  or  guardian,  who  is 
responsible  for  the  conduct  of  the  suit,  or  by  the  Attorney 
General  or  next  friend,  where  the  interests  of  the  guardian 
clash  with  those  of  the  lunatic.  1  DanieWs  Ch.  Pr.  8,  108  ; 
Story's  Eq.  PL,  §  64,  65,  note;  Cooper's  Eq.  PI,  32  ;  Mitford 
on  PL  {by  Jeremy)  29. 

The  right  of  appearing  and  prosecuting,  or  defending,  any 
action  in  any  of  the  courts  of  this  state,  in  person,  or  by  soli- 
citor or  attorney,  is  expressly  limited  by  statute  to  persons 
of  full  age  and  sound  memory.     Nix.  I)ig.  654,  §  1. 

A  reference  to  the  contents  of  the  bill  in  this  case  manifests 
the  propriety  of  the  ride,  and  the  duty  of  strictly  enforcing 
it,  as  well  from  regard  to  the  interests  of  the  complainant,  as 
to  the  rights  of  the  defendant. 

The  objection,  if  it  appear  upon  the  face  of  the  bill,  may 
be  raised  by  demurrer,  or  by  motion  to  take  the  bill  from  the 
files.  2  Barbour's  Ch.  Pr.  224;  Wartnaby  v.  Wartnaby, 
Jacob's  R.  377. 

A  bill  exhibited  by  a  person  of  unsound  mind,  must  have 
been  filed  without  authority  of  law.  It  should,  therefore, 
betaken  from  the  files.     This  course  saves  expense  and  avoids 


486  CASES  IN  CHANCERY. 

* 

Howard  v.  Ex'rs  of  Howard. 

the  necessity  of  enrolling  the  decree,  and  of  thus  spreading 
scandalous  or  impertinent  matter  upon  the  record. 

Leave  is  given  to  withdraw  the  demurrer  aud  the  bill  will 
be  ordered  to  be  taken  from  the  files. 


Clarissa  Howard  vs.  The  Executors  of  William  E. 
Howard  and  others. 

1.  Where  there  is  a  general  bequest  for  life  with  remainder  over,  the 
whole  property  must  be  sold  and  converted  into  money  by  tlie  executor, 
tlie  proceeds  invested,  and  the  interest  only  paid  to  the  legatee  for  life. 
The  rule  prevails,  except  there  is  an  indication  of  an  intention  on  the  part 
of  the  testator,  that  the  legatee  for  life  .should  receive  the  property  be- 
queathed. 

2.  The  circumstance  that  a  bequest  of  general  personal  estate  is  in  the 
game  sentence  with  a  devise  of  the  real,  will  not  make  the  legacy  specific. 

3.  The  well  settled  rule  in  equity  is,  that  where  it  appears  that  there  la 
danger  that  the  principal  of  the  legacy  will  be  wasted  or  lost,  the  eourfc 
will  protect  the  interest  of  the  legatee  in  remainder,  by  compelling  the 
legatee  for  life  to  give  security  for  the  safe  return  of  the  principal. 

4.  Under  like  circumstances,  the  executor  himself  will  be  required  to 
give  security  for  the  safety  of  the  fund. 

Tuttle,  for  complainant. 

* 

A.  S.  Pennington,  for  defendants. 

The  Chancellor.  William  E.  Howard,  in  and  by  his 
last  will  and  testament,  after  sundry  devises  and  bequests, 
including  specific  legacies  to  his  wife,  gave  the  residue  of  his 
estate,  real  and  personal,  to  his  wife  during  the  remainder  of 
her  natural  life ;  and  upon  her  death,  he  gave  the  same  to 
his  four  sisters  and  other  legatees. 

The  testator  died  in  1829.  The  executors  possessed  them- 
selves of  his  estate,  and  in  1861,  exhibited  an  account  for 
settlement,  by  which  it  appears  that -after  the  payment  of 


FEBRUARY  TERM,  1864.  487 

Howard  v.  Ex'rs  of  Howard. 

(lei)ts  and   specific  legacies,  there  remained  in  their  hands  a 
residue  of  nearly  thirteen  thousand  dollars. 

The  widow  now  exhibits  her  bill  for  relief  against  the 
executors  and  legatees  in  remainder,  by  which  she  prays — 

1.  That  the  executors  may  be  decreed  to  account,  and  to 
pay  the  residue  of  the  estate  into  her  hands. 

2.  Alleginor  that  the  income  is  insufficient  for  her  main- 
teuance,  that  the  executors  may  be  decreed  to  pay  to  the  com- 
plainant such  sums  of  money  as  may  be  deemed  just  and  rea- 
sonable for  her  support  and  maintenance,  and  for  the  payment 
of  her  debts. 

The  rule  is,  that  where  there  is  a  general  bequest  for  life 
with  remainder  over,  the  whole  must  be  sold  and  converted 
into  money  by  the  executor,  the  proceeds  invested,  and  the 
interest  only  paid  to  the  legatee  for  life.  Howe  v.  Eaid  of 
Dartmouth,  7  Vesey  137  ;  Randall  v.  Russell,  3  3Ier.  193  ; 
Covenhovoi  v.  Shuler,  2  Paige  132;  Cairns  v.  Chaubert,  9 
Paige  163 ;  2  Kent's  Com.  353  ;  2  Story's  Eq.  Jar.,  §  845  a  ; 
Willard's  Eg.  Jur.  332;  2  Williams  on  Ex'rs  {ed.  1849) 
1196  ;  Reed  v.  Eddy,  2  Green's  R.  176;  Ackerman's  Adm'rs 
V.   Vredand's  Ex'r,  1  McCarter  23. 

The  rule  prevails,  except  there  is  an  indication  of  an  inten- 
tion on  the  part  of  the  testator,  that  the  legatee  for  life  should 
receive  the  property  bequeathed.  Collins  v.  Collins,  2  Mylne 
&  K.  703  ;  Pickering  v.  Pickering,  2  Beav.  31  ;  jS'.  C.  4 
Mylne  &  C.  289  ;  1  Story's  Eq.,  §  604,  note  1. 

There  is  nothing  upon  the  face  of  the  will  to  indicate  an 
intention  that  the  specific  property  should  be  reserved  by  the 
legatee.  The  circumstance  that  the  bequest  of  the  general 
])ersonal  estate  is  in  the  same  sentence  with  that  of  the  real, 
the  devise  of  which  is  naturally  speoiiid,  will  not  be  sufficient 
to  malce  it  a  specific  legacy.  Howe  v.  Earl  of  Dartmouth,  7 
Vesey  137  ;  2   Williams  on  Ex'rs  1006. 

But  if,  by  the  terras  of  the  will,  the  legatee  for  life  wero 
entitled  to  receive  the  principal  of  the  legacy,  upon  the  facts 
disclosed  by  the  bill  and  answer,  and  by  the  evidence  iu  the 
case,  she  is  not  entitled  to  relief. 


488  CASES  IN  CHANCERY. 

Thorp  V.  Pettit. 

The  legatees  in  remainder,  by  their  answer,  allege  that 
there  is  danger  of  the  loss  of  the  fund  in  ease  the  principal  is 
paid  to  the  legatee  for  life.  The  evidence  shows  the  existence 
of  such  danger.  Indej^endent  of  the  evidence,  the  fact  is 
apparent  upon  the  face  of  the  complainant's  bill ;  the  com- 
])lainant  herself  alleging  that  the  interest  of  the  fund  is  in- 
sufficient for  her  support,  and  praying  that  she  may  have  a 
reasonable  allowance  out  of  the  principal  of  tlie  fund  for  her 
support  and  maintenance,  and  for  the  payment  of  her  debts. 

The  well  settled  rule  in  equity  is,  that  where  it  appears 
that  there  is  danger  that  the  j)rincipal  of  the  legacy  will  be 
wasted  or  lost,  a  court  of  equity  will  protect  the  interest  of 
the  legatee  in  remainder  by  compeUing  the  legatee  for  life  to 
give  security  for  the  safe  return  of  the  principal.  Foley  v. 
Baniell,  1  Bro.  Ch.  O.  279;  Rome's  Ex'rs  v.  While,  ante, 
p.  411  ;  Hudson  v.  Wadsworth,  8  Conn.  348;  Langworthy  v. 
Chadioick,  13  Conn.  42;  Homer  v.  Skelton,  2  ]\IetG.  206;  1 
Slonjs  Eq.  Jar.,  §  604  ;  2  Story's  Eq.  Jur.,  §  845,  845  a. 
And  under  like  circumstances  the  executor  himself  will  be 
required  to  give  security  for  the  safety  of  the  fund.  Batten 
V.  Earnley,  2  P.  IV.  163  ;  Slanning  v.  Style,  3  P.  IF.  335  ; 
Rous  V  Noble,  2  Vern.  249  ;  1  Story's  Eq.  Jur.,  §  603. 

There  is  no  ground  for  requiring  an  account  from  the  ex- 
ecutors. They  have  settled  their  account  in  the  Orphans 
Court.  There  is  no  j)retence  of  mistake  or  fraud  in  tlie  set- 
tlement. The  interest  of  the  residue  has  been  regularly  paid 
over  to  the  complainant. 

The  bill  must  be  dismissed. 


Amos   Thorp   and    ^Yli.LIAM    Smallwood   vs,   Joseph 

Pettit. 

1.  A  party,  who  seeks  the  ppecific  performance  of  a  contract,  must  show 
that  he  has  performed,  or  been  ready  and  willing  to  perform,  all  the  es- 
sential terms  of  the  contract. 

2.  The  answer  of  the  defendant  being  directly  responsive  to  the  allega- 
tions of  the  bill,  and  a  full  denial  of  its  equity,  injunction  dissolved. 


FEBRUARY  TERM,  1864.  489 

Thorp  V.  Pettit. 

The  bill  in  this  cause  was  filed  to  restrain  the  defendant 
from  the  coraniisi-iun  of  certain  acts,  alleged  to  be  in  viola- 
tion of  an  agreement  with  the  complainants,  and  to  compel 
a  specific  performance  of  the  agreement.  An  injnnction  was 
issued  pursuant  to  the  prayer  of  the  bill.  Tiie  defendant 
having  answered,  now  moves  to  dissolve  the  injunction. 

Carpeyiter,  for  defendant,  in  support  of  the  motion. 

A  bill  for  specific  performance  rests  on  the  complainant's 
having  faithfully  performed  the  contract  on  his  part.  1 
Story's  Fq.,  §  736  ;  Batten  on  Spec.  Per/.  108. 

Having  failed  to  perform  their  part  of  the  contract,  the 
complainants  became  mere  trespassers,  and  would  be  liable 
in  that  character,  but  for  the  receipt  for  rent  given  by  the 
defendant.  Taylor  on  Land.  &  Ten.,  §  21—4  ;  Archbold's 
Land.  &  Ten.  48-9  ;  Doe  v.  Pullen;2  Blng.  N.  C.  749. 

The  complainants  have,  under  their  agreement,  a  mere 
equitable  interest.  There  is  no  part  performance.  They  are 
in  possession  under  the  old  lease.  Archbold's  Land.  &  Ten. 
57;  Z  Zab.  112. 

The  contract  will  not  be  enforced.  6  Fes??/ 548  ;  12  Vesey 
464. 

Broion'mg,  for  complainant,  contra. 

The  Chancellor.  The  bill  charges  that  in  the  year  1862, 
one  J()so[)h  D.  Pancoast,  being  in  possession  of  a  grist  mill  of 
the  defendant,  situated  in  the  city  of  Salem,  under  a  lease 
which  expired  on  the  25th  of  March,  1862,  the  defendant  en- 
tered into  a  parol  agreement  with  the  com[)lainants,  that  if 
they  would  purchase  the  interest  of  Pancoast,  he,  the  defend- 
ant, would  lease  the  premises  to  the  complainants  at  a  speci- 
fied rent  for  the  term  of  three  years  and  six  months,  to  com- 
mence on  the  25th  of  September,  1861,  and  to  end  on  the 
25th  of  March,  1865;  and  that  he,  the  defendant,  would  not, 
at  the  said  city  of  Salem,  engage  in  or  carry  on  the  business 
of  grinding  grain  for  toll,  commonly  called  "  grist  work,"  or 
of  selling  flour  or  feed,  except  tlie  offal  of  such  grain  as  he 
might  grind   in  conducting   a  merchant  milling  business  at 


490  CASES  IN  CHANCERY. 

Thorp  V.  Pettit. 

said  city.  It  was  further  agreed  that  Pettit  should  draw  the 
proper  writings  to  carry  the  agreement  into  effect,  and  have 
them  ready  for  execution  on,  or  before  the  25th  of  Septem- 
ber, 1861,  at  which  time  tlie  complainants  agreed  to  give  the 
defendant  satisfactory  security  for  tiie  performance  of  tlie 
agreement  on  their  part.  That  at  the  time  specified  the  com- 
pUiinants  w-ere  ready  to  execute  the  agreement,  and  to  give 
security  for  its  due  performauce  u[)on  their  part.  That  the 
defendant  produced  two  papers,  bearing  date  on  the  25th  of 
September,  1861  ;  one  a  lease  for  six  months  from  that  date, 
and  the  other  a  lease  for  three  years  from  the  25th  of  March, 
1862 — the  two  terms  together  making  the  term  of  three 
years  and  six  months,  for  which  the  defendant  had  agreed  to 
lease  the  premises  to  the  complainants.  That  the  lease  for 
six  months  was  then  executed;  but  both  the  said  leases  omit- 
ting the  stipulation  on  the  part  of  the  defendant,  not  to  carry 
on  at  Salem  the  business  of  grinding  grain  for  toll,  or  of 
selling  flour  or  feed,  as  above  stated,  the  lease  for  three  years 
was  not  executed,  but  the  execution  thereof  was  postponed 
until  the  covenant  on  the  part  of  the  defendant  should  be 
})repared,  and  both  instruments  be  executed  together.  That 
the  complainants  thereupon  entered  into  possession  of  the  de- 
mised premises,  and  continue,  under  and  in  part  execution  of 
their  agreement  with  the  defendant,  to  hold  the  same  as 
tenant  of  the  defendant,  as  if  the  said  lease  and  covenant  had 
been  executed,  and  have  paid  the  rent,  and  done  and  per- 
formed all  the  covenants  on  their  part,  as  if  the  said  lease 
and  agreement  had  been  executed.  But  the  defendant  sub- 
sequently refused  to  execute  the  said  lease  for  three  years, 
or  to  execute  and  deliver  the  covenant  on  his  part  not  to 
engage  in  the  business  of  grinding  grain  for  toll,  or  of  selling 
flour  and  feed. 

The  bill  further  charges  that  the  defendant,  in  violation  of 
his  agreement,  has  commenced,  and  is  carrying  on,  at  said 
city,  the  business  of  grinding  grain  for  toll,  and  of  selling 
flour  and  feed,  and  prays  that  he  be  restrained  from  such 
violation  of  his  agreement  with  the  complainants  ;  that  he 


FEBRUARY  TERM,  1864.  491 

Weatherby  v.  Slack. 

may  accouat  to  the  complainants  for  all  the  grain  so  ground, 
and  flour  and  feed  so  sold,  and  pay  to  the  complainants  the 
damages  they  have  sustained  by  reason  thereof;  and  that 
the  defendant  may  be  decreed  specifically  to  perform  his 
agreement  with  the  complainants  touching  the  said  lease. 
An  injunction  was  issued  pursuant  to  the  prayer  of  the  bill. 
The  defendant  having  answered,  now  moves  to  dissolve  the 
injunction. 

The  defendant,  by  his  answer,  states  that  he  executed  the 
lease  for  six  months,  and  that  the  complainants  entered  into 
possession  of  the  demised  premises  by  virtue  thereof,  and 
that  he  subsequently  refused  to  execute  the  lease  for  three 
years,  because  the  complainants  failed  to  furnish  the  security 
for  the  performance  of  their  contract,  which  they  agreed  to 
do.  The  answer  further  alleges,  that  since  the  complainants 
have  been  in  possession  they  have  not  paid  the  taxes  upon 
the  premises,  nor  made  repairs  thereof,  as  by  their  agreement 
they- were  bound  to  do. 

It  is  incumbent  on  a  party  who  seeks  the  specific  perform- 
ance of  a  contract  to  show  that  he  has  performed,  or  been 
ready  and  willing  to  perform,  all  the  essential  terms  of  the 
contract  on  his  part.  1  Fry  on  Spec.  Ptrf.  270,  §  608  ;  Bat- 
ten on  Spec.  Per/.  108  ;  1  Story^s  Eq.  Jur.,  §  736.  Upon 
this  point  the  answer  is  directly  responsive  to  the  allegations 
of  the  bill,  and  is  a  full  denial  of  its  equity. 
The  injunction  must  be  dissolved. 

Cited  in  Crane  v.  DeCamp,  6  C.  E.  Gr.  420. 


Isaac  Weatherby  vs.  Philip  F.  Slack  and  others. 

1.  Tlie  general  rule  is,  that  where  a  part  of  the  mortgnged  premises  has 
been  aliened  by  the  mortgagor  and  a  part  retained  by  liim,  the  part  re- 
tained, as  between  the  mortgagor  and  his  alienee,  is  primarily  chargeable. 
with  the  debt. 

2.  The  real  question  in  such  cases  must  always  be,  who,  in  equity,  is 
bound  to  pay  tlie  debt?  The  debt  is  due  from  the  mortgagor  to  the  en- 
cumbrancers, and  liis  portion  of  the  mortgaged  premises  must  primarily 


492  CASES  IN  CHANCERY. 

Weatherby  v.  Slack. 

bear  tiie  burden,  unless  it  be  shown  that  it  has,  by  some  means,  been 
shifted  upon  the  portion  of  the  alienees.  This  fact  it  is  incumbent  upon 
the  raortL'agor  to  establish. 


3Ir.  F.  Voorhces,  for  complainant,  cited  Saxton  413  ;  2 
Halst.  Ch.  i?.  31  ;  2  Green's  Ch.  R.  125;  2  JBeas.  400;  3 
Amer.  Law  Reg.  {N.  S.)  154;  Addison  on  Contracts  2  ;  3 
Green's  Ch.  R.  224. 

3Ir.  Vroom,  for  defendants,  cited  Engle  v.  Haines,  1  Halst. 
Ch.  R.ISQ;  Wikoff  v.  Davis,  3  Green's  Ch.  R.  224. 

The  Chancellor.  The  bill  is  filed  to  foreclose  a  mort- 
gage, given  by  Slack  and  wife  to  Aaron  Wills,  bearing  date 
on  the  twenty-third  of  August,  1851,  to  secure  the  sum  of 
five  hundred  dollars,  and  by  Wills  assigned  to  the  com- 
plainant. 

On  the  fourth  of  December,  1851,  a  second  mortgage  on 
the  same  premises  was  given  by  Slack  and  wife  to  Sarah  N. 
Bowne,  to  secure  the  sum  of  two  thousand  dollars,  which 
was  subsequently  assigned,  and  is  now  held  by  Edward  Bowne 
and  Benajah  Woodward,  trustees,  two  of  the  defendants. 
These  mortgages  are  admitted  to  be  valid  and  subsisting  en- 
cumbrances ui)on  the  mortgaged  jiremises. 

On  the  sixteenth  of  August,  1858,  Slack  and  wife  executed 
a  third  mortgage  on  the  same  premises  to  Samuel  K.  Wilson 
to  secure  the  sum  of  twenty-five  hundred  dollars,  which  wa9 
subsequently  assigned  by  him  to  the  firm  of  Wilson  &  Bond, 
and  was  by  them  delivered  up  to  the  mortgagor  to  be  can- 
celled, on  receiving  the  conveyance  hereinafter  mentioned. 

On  the  fourteenth  of  December,  1861,  Slack  and  wife  con- 
veyed a  part  of  the  mortgaged  premises  to  Samuel  K.  Wil- 
son, with  covenant  of  general  warranty. 

The  only  question  in  the  cause  is,  whether  that  portion  of 
the  mortgaged  premises  thus  conveyed  to  Wilson,  or  the  part 
retained  by  the  mortgagor,  shall  be  first  sold  to  satisfy  the 
encumbrances. 


FEBRUARY  TERM,  18G4.  493 

Weatherby  v.  Slack. 

The  general  rule  is  admitted  to  be,  that  where  a  part  of 
the  mortgaged  premises  has  been  aliened  by  the  mort- 
gagor, and  a  part  retained  by  him,  the  part  retained,  as  be= 
tween  the  mortgagor  and  his  alienee,  is  primarily  ehargeable 
with  the  debt.  Shannon  v.  Marselis,  Saxton  413;  Wikoff 
V.  Davis,  3  Green's  Ch.  R.  224  ;  Winters  v.  Henderson,  2 
Hoist  Ch.  R.  81 ;  GasMll  v.  Sine,  2  Beas.  400 ;  2  Story's 
Eq.  Jur.,  §  1233  6  ;   1   Wash,  on  Real  Prop.  570. 

The  real  question  in  such  cases  must  always  be,  who  in 
equity  is  bound  to  pay  the  debt?  The  debt  is  due  from  the 
mortgagor  to  the  encumbrancers,  and  his  portion  of  the 
mortgaged  premises  must  primarily  bear  the  burden,  unless 
it  be  shown  that  it  has,  by  some  means,  been  shifted  upon 
the  portion  of  the  alienees.  This  fact,  it  is  incumbent  upon 
the  mortgagor  to  establish. 

The  mortgagor,  by  his  answer,  alleges  that  the  deed  to  Sam- 
uel K.  Wilson  for  a  part  of  the  mortgaged  premises,  was  exe- 
cuted to  him  at  the  request  of  the  firm  of  Bond  &  Reading, 
(the  firm  being  com[)osed  of  Samuel  K.  Wilson,  Joseph  W. 
bond,  and  Franklin  Reading,)  and  that  it  was  well  understood 
between  himself  and  the  said  Samuel  K.  Wilson,  on  behalf  of 
himself  and  the  other  parties,  that  the  property  conveyed  by 
the  said  deed  was  to  be  by  them  accepted,  and  the  same  was 
by  them  accepted,  subject  to  the  payment  of  the  two  mort- 
gages upon  the  premises,  set  out  in  the  complainant's  bill ; 
and  he  insists  that  Wilson,  having  acce])ted  the  said  deed  for 
a  part  of  the  said  mortgaged  premises,  and  having  received 
the  same  in  full  payment  and  satisfaction  of  the  mortgage 
of  said  firm,  which  was  thereupon  given  up  to  be  cancelled, 
and  subject  to  the  payment  by  Wilson,  or  by  the  said  firm, 
of  the  said  two  mortgages,  the  balance  of  the  mortgaged 
premises  now  held  by  the  mortgagor,  is  not  liable  to  pay 
any  part  of  the  mortgages,  but  that  the  mortgagor,  by  virtue 
of  the  agreement  aforesaid,  is  entitled  to  hold  the  same  free 
and  discharged  therefrom. 

The  grantees  of  the  mortgagor,  by  their  answer,  deny  that 
they,  or  either  of  them,  ever  agreed  to  accept  a  conveyance 

Vol.  I.  2  H 


494  CASES  IN   CHAXCERY. 

Weatherby  v.  Slack. 

of  a  part  of  the  said  mortgaged  premises,  subject  to  tiie  pay- 
ment of  the  mortgages  thereon,  or  that  such  deed  was  ac- 
cepted in  payment  of  their  debt.  They  allege  that  the  firm 
liolding  a  mortgage  upon  the  whole  of  said  premises,  and  a  bill 
having  been  filed  for  the  foreclosure  thereof,  the  mortgagor, 
then  being  the  owner  in  fee  of  the  whole  of  said  premises, 
proposed  to  convey  the  same  to  the. complainants,  if  they 
would  discontinue  the  suit,  and  permit  him  to  occupy  the 
premises  one  year,  rent  free.-  And  it  was  thereupon  agreed 
between  the  parties,  that  the  said  Wilson  and  Bond  should 
discontinue  their  proceedings  to  foreclose,  and  permit  the 
mortgagor  to  occupy  the  premises  for  one  year,  free  of  rent, 
j)rovided  he  would  pay  the  taxes,  insure  the  premises  against 
fire,  and,  together  with  his  wife,  execute  a  deed  for  the 
moi-tgaged  premises  to  the  said  firm,  or  to  such  person,  for 
their  use,  as  they  should  designate  ;  and  that  the  mortgaged 
premises  subject  to  the  encumbrances,  would  be  received  ia 
satisfaction  of  their  mortgage.  They  further  allege  that  the 
deed  subsequently  made  by  the  mortgagor  to  Wilson,  was 
•delivered  to  one  of  the  firm  of  Bond  and  Wilson,  under  the 
•agreement  then  made,  and  was  accepted,  and  the  bond  and 
mortgage  surrendered,  upon  the  understanding  and  belief, 
and  under  the  representation  of  the  mortgagor,  that  the 
deed  covered  the  whole  of  the  mortgaged  premises. 

The  issue  made  by  the  pleadings  is,  whether  the  grantees 
of  Slack,  the  mortgagor,  agreed  to  accept,  and  did  accept,  a 
deed  for  part  of  the  mortgaged  premises  in  payment  of  their 
mortgage,  and  upon  the  condition  of  their  paying  the  prior 
mortgages  upon  the  premises.  The  claim  of  the  mortgagor, 
to  make  a  debt  due  from  himself  an  encumbrance  upon  the 
land  of  his  grantees,  depends  upon  the  establishment  of  that 
fact  to  the  satisfaction  of  the  court.  It  is  not  so  established. 
On  the  contrary,  I  think  the  decided  weight  of  the  evidence 
is,  that  Slack  agreed  to  make,  and  the  grantees  to  accept,  a 
conveyance,  not  for  a  part,  but  for  the  whole  of  the  mortgaged 
premises,  and  that  the  deed  actually  delivered  was  not  de- 


FEBRUARY  TERM,  1864.  495 

Weatherby  v.  Slack. 

livered  in  good  fi\ith,  or   in   accordance  with   the  agreement 
and  understanding  of  the  parties. 

The  mortgaged  premises  are  an  ordinary  town-lot,  consist- 
*ng  of  a  dwelling-house  and  lot  in  Mount  Holly,  fronting 
/orty-four  feet  five  inches  on  High  street,  and  extending  in 
lepth  one  hundred  and  eighty-eight  feet  one  inch  ;  the 
dwelling-house  oconnving  the  front  of  the  lot,  and  a  stable 
standing  on  the  rear.  The  deed  to  Wilson  conveys  a  lot  one 
hundred  and  sixty-eight  feet  one  inch  in  depth,  thus  exclud- 
ing twenty  feet  of  the  rear  of  the  lot,  upon  which  the  stable 
stands.  The  description  of  the  premises  conveyed  by  the 
deed,  is  identical  with  that  covered  by  the  mortgage,  as  to 
course  and  distance,  excepting  in  the  length  of  a  single  line, 
so  that  the  variation,  even  if  the  deed  had  been  examined, 
would  not  be  very  likely  to  arrest  attention.  Nor  is  there 
anything  u[)on  the  face  of  the  deed,  indicating  that  it  was 
for  a  part  only  of  the  lot  as  held  and  occupied  by  the  mort- 
gagor. The  evidence  shows  that  the  part  of  the  lot  not 
included  in  the  deed,  is  worth  five  hundred  dollars,  and  that 
the  division  would  injure  the  value  of  the  entire  premises  to 
a  still  larger  amount.  That  mortgagees  who  had  commenced 
proceedings  for  foreclosure  should  arrest  the  suit,  and  allow 
the  mortgagor  to  continue  a  year  in  possession,  rent  free, 
upon  receiving  a  title  for  the  premises  without  the  expense 
of  litigation,  is  neither  incredible,  nor  improbable.  But  that 
they  should  at  the  same  time  consent  to  receive  title  for  a 
portion  of  the  premises,  by  which  their  security  was  seriously 
impaired,  is  not  probable.  The  mortgagees  severally  deny 
that  they  ever  made  such  an  agreement.  They  all  state  that 
fhey  understood  the  deed  to  cover  the  entire  mortgaged  pre- 
mises, and  they  all  deny  that  a  word  was  ever  said  in  the  course 
of  the  negotiation,  about  conveying  less  than  the  whole  of  the 
mortgaged  premises.  The  partner  by  whom  the  negotiation  for 
the  conveyance  was  principally  conducted,  states  that  the  con- 
tract was  made  expressly  for  the  entire  lot.  But  the  testimony 
of  the  mortgagor  himself  is  decisive  upon  this  point.  He 
.'^ays  that    he   proposed    to  convey  the  house;   that  nothing 


496  CASES  IN  CHANCERY. 

In  the  matter  of  Chattin. 

was  said  between  himself  and  the  grantees  as  to  the  quantity 
of  land  he  should  convey.  He  drew  the  deed  himself,  and 
included  in  the  description  so  much  land  as  he  deemed  suffi- 
cient to  pay  what  he  owed  them.  He  does  not  pretend  that 
the  attention  of  the  grantees  was  ever  called  to  the  descrip- 
tion as  he  had  drawn  it;  that  he  ever  intimated  that  it  in- 
cluded only  a  part  of  the  lot  held  and  occupied  with  the 
house;  or  that  they  supposed  or  believed  that  it  was  other 
than  a  conveyance  of  the  entire  lot  covered  by  their  mort- 
gage. The  evidence  incontestably  proves  that  the  grantees 
negotiated  for,  and  expected  to  receive,  a  deed  for  the  house 
and  lot  as  they  were  held  and  occupied  by  the  grantor.  It 
is  incredible  that  they  should  have  consented  to  surrender  a 
bond  and  mortgage  upon  a  town  house  and  lot,  and  receive 
in  return  a  conveyance  for  the  house  alone,  or  so  much  land 
only  as  the  grantor  saw  fit  to  convey. 

The  land  not  conveyed  by  the  grantor  is  chargeable  with 
the  mortgage  debts,  and  must  be  sold  first  in  order.  There 
must  be  a  reference  to  ascertain  the  amount  due  upon  the 
mortgages. 


In  the  matter  of  Adam  S.  Chattin. 

1.  A  commission  of  lunacy  may  issue  ■where  the  alleged  lunatic  is  an 
infant. 

2.  The  issuing  of  a  commission  of  lunacy  rests  in  discretion. 

Ckirman,  for  petitioner. 

The  Chancellor.  The  only  question  in  this  case  is, 
whether  a  commission  of  lunacy  ought  to  issue,  the  alleged 
lunatic  being  a  minor. 

Infancy  is  no  bar  to  the  issuing  of  a  commission.  But 
where  a  guardian  has  been  appointed  for  the  infant,  his  con- 


FEBRUARY  TERM,  1864.  497 

In  the  matter  of  Chattin. 

trol  over  the  person  and  estate  of  his  ward  ought  not  to  be 
interfered  with,  on  the  ground  that  the  ward  labors  under  a 
double  disability,  exce{)t  in  cases  of  clear  necessity.  Even 
where  the  lunatic  is  of  full  age  and  the  lunacy  manifest,  the 
issuing  of  the  commission  is  not  a  matter  of  course,  but  rests 
in  discretion.  It  will  be  issued  only  where  it  is  required  for 
the  interest  of  the  lunatic,  or  to  protect  the  rights  of  others. 
Ex  parte  Tomlinson,  1  Ves.  &  B.  58  ;  Rebecca   Owings'  case, 

1  Bland's  Gh.  R.  290  ;  Stock  on  Non  Camp.  95. 

In  the  case  o(  Hake,  an  infant,  cited  in  Ex  parte  Southcot, 

2  Ves.  sen.  403,  a  commission  was  ordered  by  Lord  Hardwicke, 
on  the  application  of  a  party  who  was  entitled  to  the  rever- 
sion of  an  estate  after  the  death  of  the  alleged  lunatic,  although 
at  the  time,  the  infant  was  under  guardianship. 

In  Sherwood  v.  Sanderson,  19  Vesey  289,  Lord  Eldon, 
referring  to  a  case  within  his  recollection,  said  :  "  That  if  a 
lady  at  the  age  of  seventeen  or  eighteen  had  been  married  by 
an  adventurer  for  the  sake  of  her  fortune,  it  would  be  compe- 
tent for  the  Chancellor  to  direct  an  inquiry  whether  she  was 
of  sound  mind  when  married,  and  whether  it  would  be  for  her 
benefit  that  a  commission  of  lunacy  should  issue.'"  And  see 
2  Collinson  on  Lun.  217. 

The  authority  of  guardians  over  the  persons  and  estates  of 
infants,  and  the  power  which  this  court  exercises  over  the 
persons  and  estates  of  its  wards,  generally  renders  the  issuing 
of  a  commission  of  lunacy  unnecessary  during  infancy  ;  but 
if  any  circumstance  renders  it  necessary  or  expedient,  a  com- 
mission will  issue.  In  re  Flint,  cited  Shelford  on  Lun.  91  ; 
Macpherson  on  Infants  560 ;   Stock  on  Non  Comp.  94. 

In  this  case,  the  infant,  though  entitled  to  property,  has 
no  guardian.  Being  over  the  age  of  fourteen,  he  cannot 
apply  for  the  appointment  of  a  guardian,  as  prescribed  by 
the  statute.  His  property  requires  to  be  protected.  The 
issuing  of  the  commission,  therefore,  is  necessary  and  proper. 


498  CASES  IN  CHANCERY. 


In  the  matter  of  Child. 


In  the  matter  of  John  M,  B.  Child. 

1.  Where  the  alleged  lunatic  is  in  an  asylum,  tlie  commission  should  be 
executed  in  the  county  where  his  mansion  and  estate  are,  or  where  he  last 
resided  before  being  sent  to  the  asylum, 

2.  It  is  not  absolutely  necessary  that  the  alleged  lunatic  should  be  be- 
fore the  jury.  A  commission  may  issue  where  he  is  a  non-resident,  or  tem- 
porarily absent  from  the  state,  and  where  it  is  impossible  for  the  jury  to 
Bee  him. 

3.  If  necessary,  the  court  will  order  the  party  having  the  alleged  luna- 
tic in  charge,  to  bring  him  before  the  jury, 

4.  Where  the  estate  of  the  lunatic  is  small,  the  court  will,  it  seems,  in 
order  to  avoid  inconvenience  and  expense,  order  the  commission  to  issue 
to  a  different  county  from  that  in  which  he  resides. 


A.  Mills,  for  petitioner. 

The  Chancellor.  The  alleged  lunatic  is  an  inmate  of 
the  State  Lunatic  Asylum,  in  the  county  of  Mercer.  Before 
he  was  sent  to  the  asylum,  he  resided  in  the  county  of  Morris, 
where  his  property  is  situate.  In  which  county  shall  the 
commission  be  executed  ?  Neither  the  statute,  nor  the  rules 
of  the  court,  give  any  direction  on  the  subject.  The  regular 
practice  of  the  court  is,  to  direct  the  commission  to  be  exe- 
cuted in  the  county  where  the  lunatic  ordinarily  resides. 
This  is  in  accordance  with  the  ancient  practice  of  the  court. 
Ex  parte  Baker,  1  Cooper's  Ch.  Cas.  205;  /S'.  0.,  19  Vesey 
340  ;  Ex  parte  Hall,  7  Vesey  260  ;  Ex  parte  Smiih,  1  Sioan- 
ston  4. 

In  ex  parte  Smith,  Lord  Eldon  said  :  "  If  a  man  resident 
in  the  city  of  London,  were  conveyed  by  force  into  Essex,  he 
would  still  for  this  purpose  be  resident  in  the  city.  A  man 
cannot  be  said  to  reside  in  a  place,  to  which  he  has  been  carried, 
while  he  has  not  mind  enough  to  intend  a  change  of  residence." 

The  execution  of  the  commission  in  the  county  where  his 
residence  was,  prior  to  his  removal  to  the  asylum,  and  where 


FEBRUARY  TERM,  1864.  499 

In  the  matter  of  Child. 

his  property  lies,  is  not  only  iti  accordance  with  the  settled 
usage  of  the  court,  but  will  be  found  in  practice,  to  be  the 
most  convenient  and  appropriate  course.  If  there  be  any 
doubt  as  to  the  insanity  of  the  party,  the  investigation  and 
decision  of  that  question,  at  a  place  remote  from  his  family 
and  former  friends  and  associates,  would  be  open  to  grave 
observation.  The  inquisition,  moreover,  respects  not  only  his 
present  lunacy,  but  how,  and  when  it  originated.  It  extends 
also  to  the  alienations  made  by  him  of  his  real  estate;  the 
lands  which  still  remain  to  him,  and  their  value  ;  who  are  his 
nearest  heirs,  and  their  ages.  All  these  questions  will  be 
most  conveniently  and  satisfactorily  investigated  in  the  place 
where  the  party  has  resided,  and  where  his  property  is.  In 
Southcot's  case,  2  Ves.  sen.  401,  the  alleged  lunatic  being 
abroad,  Lord  Hardwicke  ordered  the  commission  to  issue  to 
the  county  where  the  mansion-house  and  a  great  part  of  the 
estate  lay. 

The  objections  to  this  course,  that  the  jury  are  entitled  to 
see  and  examine  the  party,  and  that  witnesses  who  can  speak 
most  satisfactorily  as  to  his  present  condition  of  mind,  will  be 
found  at  the  asylum,  are  not  insuperalile. 

It  is  not  absolutely  necessary  that  the  party  should  be  be- 
fore the  jury,  and  in  cases  free  from  doubt,  it  is  perhaps  not 
usual. 

A  commission  may  issue  where  the  alleged  lunatic  is  a 
non-resident,  or  temporarily  absent  from  the  state,  and  where 
it  is  impossible  for  the  jury  to  see  him.  E.v  parte  Southoot, 
2  Ves.  sen.  401  ;  S.  C,  Ambler  109  ;  In  the  matter  of  Perkins, 
2  Johns.  Ch.  C.  124  ;  In  the  matter  of  Petit,  2  Paige  174  ; 
2  Barb.  Ch.  Pr.  230.  And  where  the  party  is  in  the  state, 
and  accessible,  he  may  be  seen  by  some  of  the  commissioners, 
and  of  the  jurors.  The  material  point  is,  that  the  minds  of 
tiie  jurors  should  be  satisfied.  Ex  parte  Smith,  1  Swanston 
7  ;   Case  of  Covenhoven,  Saxton  19. 

Or,  if  necessary,  an  order  will  be  made  by  the  court  that 
the  party  having  the  lunatic  in  charge,  should  have  him  be- 
fore the  jury.     She/f.  on  Lun.  91  ;  2  Hoffman's  Ch.  Pr.  252. 


500  CASES  IN  CHANCERY. 

In  the  matter  of  Child. 

It  seems  from  one  or  two  modern  cases,  that  where  the  es- 
tate of  the  lunatic  is  small,  the  court,  in  order  to  avoid  in- 
convenience and  expense,  will  order  the  commission  to  issue 
to  a  different  county  from  that  in  which  the  alleged  lunatic 
resides.  J/i  re  Waters,  2  Mylne  &  C.  38  ;  In  re  Mills,  Ibid, 
note  a. 

The  residence  of  the  party  must  be  deemed  to  be  where 
his  mansion  and  property  are,  or  where  his  last  residence 
was,  before  he  came  to  the  asylum.  In  the  absence  of  very 
special  cause  for  a  different  course,  the  commission  should 
issue  and  be  executed  accordingly. 


C^SES 


ADJUDGED   IN 


THE  PREROGATIVE  COURT 

or  THE  STATE  OF  NEW  JERSEY. 

FEBRUARY  TERM,  1863. 


Heney  W.  Green,  Esq.,  Ordinary. 


Ezra  Gould,  appellant,  and  Jane  Tingley,  executrix  of 
David  D.  Tingley,  respondent. 

1.  Where  the  notice  requiring  creditors  to  present  their  claims,  has  been 
given  in  pursuance  of  an  order  of  the  Orphans  Court,  under  section  3d  of 
the  "act  concerning  the  estates  of  persons  who  die  insolvent,"  {Nix.  Dig, 
386,)  the  creditor  cannot  be  admitted  to  a  dividend  of  the  estate,  unless  his 
claim  has  been  presented  under  oath,  within  the  time  limited  by  the  order. 

2.  Nor  does  it  obviate  the  necessity  of  presenting  the  claina  under  oath, 
that  the  order  and  notice  requiring  claims  to  be  exhibited,  were  made  by 
the  surrogate  under  section  22d,  of  the  act  of  1855.     {Nix.  Dig.  589.) 

3.  The  act  of  1855,  on  proceeding  under  a  rule  to  bar  creditors,  having 
required  the  claim  of  the  creditor  to  be  made  under  oath,  dispensed  with 
the  necessity  of  a  second  presentment  of  the  same  claim  under  proceedings 
to  declare  the  estate  insolvent. 

4.  The  requirements  of  both  acts  are  imperative,  not  directory  merely. 

5.  The  question  involving  the  construction  of  a  recent  statute,  the  decree 
is  made  without  costs  against  the  appellant. 

501 


502  PREROGATIVE  COURT. 

Gould  V.  Tingley. 

This  case  came  before  the  Ordinary  on  an  appeal  from  the 
decree  of  the  Orphans  Court  of  the  county  of  ICssex.  The 
a[)pellant,  a  creditor  of  the  estate  of  David  D.  Tingley,  had 
presented  his  claim  to  the  executrix,  not  under  oath.  The 
claim  was  not  reported  to  the  court.  An  application  was 
made  to  compel  the  executrix  to  report  the  claim.  The  ap- 
plication was  denied,  and  it  was  ordered  that  the  claim  be  not 
included  among  the  debts  of  the  estate,  and  that  the  execu- 
trix make  distribution  of  the  estate  among  the  creditors  who 
had  presented  their  claims  under  oath.  From  this  decree  the 
creditor  has  appealed. 

Huhbell,  for  appellant. 

Williamson,  for  respondent. 

The  Ordinary.  On  the  twenty-eighth  of  August,  1861, 
an  order  was  made  by  the  surrogate  of  the  county  of  Essex, 
under  the  provision  of  the  twenty-second  section  of  the  act 
of  1855,  {Nix.  Dig.  589,  §  70,)  directing  the  executrix  of  the 
estate  of  David  D.  Tingley,  to  give  notice  to  the  creditors  of 
the  estate  to  bring  in  their  claims,  under  oath,  within  nine 
months  from  the  date  of  the  order.  The  notice  was  duly 
published.  The  claim  of  the  appellant  was  not  presented  to 
the  executrix  under  oath.  On  the  seventh  of  January,  1862, 
under  the  provision  of  the  twenty-fourth  section  of  the  same 
act,  the  executrix  was  authorized  to  proceed  as  though  the 
estate  of  the  decedent  was  insolvent,  agreeably  to  the  "act 
concerning  the  estates  of  persons  who  die  insolvent."  On  the 
fifteenth  of  September,  1862,  the  executrix  made  a  report  of 
the  claims  and  demands  exhibited  agaiast  the  estate,  not  in- 
cluding the  demand  of  Ezra  Gould,  the  appellant.  An  appli- 
cation was  subsequently  made  to  the  Orphans  Court,  to  compel 
the  executrix  to  include  the  claim  of  Gould,  in  her  report  o^ 
the  claims  against  the  estate,  in  order  that  a  dividend  might 
be  paid  thereon.  This  application  was,  upon  hearing,  denied, 
and  it  was  ordered  that  the  claim  be  not  included  among  the 
debts  of  the  estate.     The  estate  was  declared  insolvent,  and 


FEBRUARY  TERM,  1863.  503 

Gould  V.  Tingley. 

the  executrix  directed  to  make  distribution  of  the  estate 
among  the  creditors  who  had  presented  their  claims  under 
oath.  From  the  order  refusing  to  admit  his  claim  to  a  divi- 
dend, and  also  from  the  final  decree  of  distribution,  the 
creditor  has  aj)pealed  to  this  court. 

If  the  notice  in  this  case,  requiring  the  creditors  to  present 
their  claims,  had  been  given  in  pursuance  of  an  order  of  the 
Orphans  Court,  agreeably  to  the  third  section  of  the  "act 
concerning  the  estate  of  persons  who  die  insolvent,"  {Nix. 
Dig.  386,)  it  is  well  settled  that  the  creditor  could  not  be  ad- 
mitted to  a  dividend  of  the  estate,  unless  his  claim  had  been 
})resented  to  the  executrix  under  oath,  within  the  time  limited 
by  the  order.  Vandyke,  v.  Chandler,  5  Haht.  R.  49  ;  Cop- 
puck  V.  Wilson,  3  Green's  R.  75. 

Tiie  only  question  is,  whether  any  change  in  this  regard 
was  effected  in  the  law  by  the  act  of  1855,  where  the  notice 
requiring  the  claims  to  be  exhibited  was  given  pursuant  to 
an  order  of  the  surrogate. 

It  is  quite  clear  that  no  change  was  intended  to  be  made 
by  the  act  of  1855,  in  the  proceedings  in  regard  to  insolvent 
estates,  except  so  far  as  is  expressly  provided  by  the  twenty- 
fourth  section  of  the  act.  By  that  section  it  is  provided  that, 
when  an  order  shall  be  obtained,  and  notice  given,  agreeably 
to  the  twenty-second  section  of  the  said  act,  if  within  ten 
months  thereafter,  the  executor  shall  make  application  for  that 
jjurpose  as  prescribed  by  the  act,  he  may  take  all  proceedings, 
and  make,  by  order  of  the  court,  all  sales  of  real  estate  that 
may  be  authorized  by  the  "act  concerning  the  estate  of  per- 
sons who  die  insolvent,"  without  proceeding  as  is  required 
by  the  third  section  of  that  act.  It  is  merely  a  substitution 
of  the  order  and  notice  under  the  twenty-second  section  of 
the  act  of  1855,  for  the  order  and  notice  under  the  third 
section  of  the  act  respecting  insolvent  estates.  Under  the 
two  statutes,  the  order  is  made  and  the  notice  given  for 
vlifferent  pnr[)oses.  Under  the  act  of  1855,  they  are  designed 
primarily  to  operate  as  a  limitation  to  the  right  of  action 
against  the  executor.  Under  the  act  res{)ecting  insolvent 
estates,  the  primary  design  is  to  ascertain  the  shares  to  which 


504  PREROGATIVE  COURT. 

Gould  V.  Tingley. 

the  creditors  are  severally  entitled  in  the  distribution  of  the 
estate.  Both  statutes  require  the  claim  of  the  creditor  to  be 
presented  within  a  limited  time,  under  oath.  Under  the  fif- 
teenth section  of  the  act  for  the  limitation  of  actions,  [Nix. 
Dig.  571,  §  21,)  the  claim  of  the  creditor  was  not  required  to 
be  made  under  oath.  Nor  was  the  law,  in  tiiis  respect,  altered 
by  the  act  of  1849,  for  the  relief  of  legatees  and  next  of  kin 
in  the  recovery  of  legacies  and  distributive  shares.  The 
latter  act  (section  3)  simjily  requires  the  claims  to  be  pre- 
sented in  writing,  specifying  the  amount  claimed,  and  the 
particulars  of  the  claim.  But  the  twenty-second  section  of 
the  act  of  1855,  which  seems  to  have  been  designed  to  some 
extent  as  a  substitute  for  the  former  acts,  requires  the  claims 
against  the  estate  to  be  made  under  oath,  as  in  case  of  insol- 
vent estates.  A  rule  taken  to  limit  creditors,  and  publica- 
tion made  under  the  former  statutes  were  of  no  avail,  if  the 
estate  was  declared  insolvent,  for  the  claim  was  not  exhibited 
under  oath.  A  new  order  and  publication  were  necessary. 
But  the  act  of  1855,  on  j)rocecding  under  rule  to  bar  creditors, 
having  required  the  claim  of  the  creditor  to  be  made  under 
oath,  dispensed  with  the  necessity  of  a  second  presentment 
of  the  same  claim  under  proceedings  to  declare  the  estate 
insolvent. 

It  is  urged  that  the  requirements  of  the  act  of  1855,  are 
directory  merely,  and  not  imperative.  Both  acts  are  alike 
imperative  in  their  terms.  The  consequence  to  the  creditor 
for  not  exhibiting  his  claim  under  the  one  act  is,  that  he 
shall  be  deprived  of  his  dividend  in  the  distribution  of  the 
estate;  under  tiie  other,  that  he  shall  be  barred  of  his  action 
against  the  executor.  No  reason  is  perceived,  nor  is  any 
suggested,  why  "the  requirement  in  the  one  case,  should  be 
regarded  as  imperative,  and  in  the  other,  as  directory.  The 
clause  in  the  twenty-second  section  of  the  act  of  1855,  which 
declares  that  if  the  creditor  shall  neglect  to  exhibit  his  claim 
within  the  time  limited,  he  shall  be  barred  of  his  action,  must 
be  construed  to  mean  an  exhibition  of  his  claim  in  the  mode 
prescribed  by  law.  To  require  that  the  claim  should  be  ex- 
hibited under  oath,  and  then  to  permit  an  exhibition  of  the 


MAY  TERM,  1863.  505 

Sayre's  Adm'r  v.  Sayre. 

claim  not  under  oath,  to  satisfy  the  requirement,  would  ren- 
der the  enactment  nugatory. 

But  if  it  be  conceded  that  the  requirement  of  the  twenty- 
second  section  of  the  act  of  1855,  so  far  as  respects  the  limi- 
tation of  the  claims  of  creditors,  is  directory  merely,  it  cannot 
aid  the  claim  of  the  apjjellant,  nor  in  any  wise  affect  the 
rights  of  the  creditor  under  the  act  respecting  insolvent  es- 
tates. Under  that  act  it  is  clear,  that  the  claim  of  the 
creditor  must  be  presented  U!ider  oath,  in  order  to  entitle  it 
to  be  included  among  the  claims  of  creditors  in  the  report 
of  the  executor,  or  to  entitle  the  creditor  to  a  dividend  of 
the  estate.  Admitting  that  the  creditor  was  not  barred  of 
his  action  against  the  executrix,  under  the  provisions  of  the 
act  of  1855,  he  is  barred  of  all  claim  for  a  dividend  under  the 
act  respecting  insolvent  estates.  Whether  the  order  is  made, 
and  notice  given  under  the  act  of  1856,  or  under  the  act  re- 
specting insolvent  estates,  is  immaterial.  In  either  contin- 
gency, the  presentment  of  the  claim  by  the  creditor  under 
oath,  is  a  prerequisite  to  his  receiving  a  dividend  of  the  in- 
solvent estate.  No  recognition  of  the  claim  by  the  executrix, 
or  by  the  court,  can  supply  the  place  of  the  statutory  re- 
quirement. 

The  decree  of  the  Orphans  Court  was  correct,  and  must 
be  affirmed.  As  the  question  presented  involves  the  con- 
struction of  a  recent  statute,  in  regard  to  which  there  was 
room  for  doubt,  the  decree  is  made  without  costs  against  the 
appellant. 


MAY    TERM,    1863. 

Brooks  Sayre,  administrator  of  Isaac  Sayre,  deceased,  ap- 
pellant, and  Anthony  S.  Sayre,  respondent. 

1.  Evidence  taken  under  an  order  of  the  Prerogative  Court  to  be  used 
upon  the  hearing  of  an  appeal,  is  competent. 


506  PREROGATIVE  COURT. 

Sayre's  Adm'r  v.  Sayre. 

2.  It  is  no  v.'ilid  objection  to  a  decree  of  distribution,  that  it  is  made  in 
favor  of  parties  wlio  are  not  applicants  therefor,  and  whose  sliares  have 
been  satisfied  or  released. 

3.  The  decree  of  distribution  is  final  and  conclusive  betveeen  the  admin- 
istrator and  the  distributees,  as  to  the  amount  of  each  share,  and  the  party 
entitled  to  receive  it.  It  is  an  effectual  protection  to  the  administrator, 
against  all  claims  for  moneys  paid  pursuant  thereto,  though  it  should  prove 
that  the  decree  was  erroneou.s,  and  the  money  paid  to  a  party  not  entitled. 

4.  The  remedy  by  a  party  deprived  of  his  rights  by  the  decree,  is  not 
against  the  administrator,  but  against  the  distributees  who  have  wrpngfiilly 
received  the  estate.  In  their  favor,  as  against  the  rightful  claimant,  the 
decree  does  not  operate. 

5.  It  is  no  part  of  the  oflBce  of  a  decree  of  distribution,  to  settle  whether 
the  share  has  been  paid,  in  whole  or  in  part,  or  whether  the  legal  or  equi- 
table interest  in  the  fund  may  have  been  assigned.  Its  office  is  simply  de- 
claratory of  the  rights  of  the  legal  representatives  or  next  of  kin  in  the 
estate  of  the  intestate. 

6.  The  question,  whether  an  administrator  has  actually  paid  a  claim 
under  the  order  of  distribution  or  not,  can  only  be  properly  tried  by  suit. 

7.  But  no  action  can  be  brought  by  the  claimant,  until  the  decree  of  dis- 
tribution is  made.  The  decree,  it  would  seem,  must  of  necessity  be  made, 
in  order  that  the  right  may  be  properly  tried  and  decided. 

8.  The  decree  upon  the  final  settlement  and  allowance  of  administrator's 
accounts,  is  final  and  conclusive  upon  all  parties  interested.  It  ascertains 
and  declares  the  net  balance  in  the  administrator's  hands,  and  the  sum  for 
which  he  must  account  to  the  distributees. 

9.  The  order  for  distribution  maybe  made  at  the  instance  of  the  admin- 
istrator, or  of  any  one  of  the  distributees.  If  made  at  the  time  of  the  set- 
tlement, no  further  notice  is  necessary. 

10.  A  separate  decree  cannot  be  made  at  the  instance  of  each  of  the 
slaimants. 

11.  One  decree  only,  can  protect  the  administrator. 


Bradley,  for  appellant. 
C.  ParJcer,  for  respondent. 

Cases  cited  by  appellant's  connsel.  Conset  on  Courts,  216, 
5  3 ;  HaWs  Adin.  Prac.  101  ;  Chambers  v.  Sunderland, 
HalsL  Dig.  216,  §  3j  Bead  v.  Drake,  1  Green's  Ch.  R.  78. 

Cases  citod    by   respondent's   counsel.     4    Grlf.  An.  Law 


MAY  TERM,  1863.  607 

Sayre's  Adm'r  v.  Sayre. 

Reg.  1192  ;  Hancock  v.  Hubbard,  19  Pick.  172;  Proctor  v. 
Neiohall,  17  Mass.  93  ;  Osgood  v.  Breed's  heirs,  Ibid.  356  ; 
The  Ordinary  v.  J' Ac  Executors  of  Smith,  3  Green's  R.  93. 

The  Ordinary.  At  the  term  of  April,  1852,  in  the 
Orphans  Court  of  the  county  of  Essex,  a  decree  was  made  for 
the  final  settlement  and  allowance  of  the  account  of  Brooks 
Sayre,  administrator  of  Isaac  Sayre,  deceased,  by  which  it 
appeared  that  there  remained  in  his  hands,  of  the  estate,  a 
net  balance  of  $3091. 22J.  At  the  same  time  an  order  was 
made  that  the  administrator  distribute  and  pay  over  the  said 
sum  to  the  persons  entitled  by  law  to  receive  the  same. 

On  the  twenty-seventh  of  March,  1855,  on  the  petition  of 
Anthony  S.  Sayre,  one  of  the  next  of  kin  of  the  intestate,  an 
order  was  made  that  cause  be  shown  before  the  court  on  the 
twenty-fourth  of  April,  then  next,  why  decree  of  distril)ution 
should  not  be  made,  as  prayed  for  in  the  petition.  On  the 
said  twenty-fourth  da^  of  April,  evidence  having  been  taken, 
a  formal  decree  of  distribution  was  made,  by  which  the  next 
of  kin  of  the  intestate  are  designated,  their  respective  shares 
ascertained,  and  the  share  due  to  each  directed  to  be  paid  ac- 
cordingly. From  tliis  decree  the  administrator  appealed. 
Pending  the  appeal,  evidence  has  been  taken  in  this  court, 
under  an  order  of  the  late  Ordinary,  tending  to  show  that  one 
of  the  chihlrcn  of  the  intestate,  to  whom  the  decree  directed 
one  of  the  distrilnitive  shares  to  be  paid,  died  several  years 
previous  to  the  decree  ;  that  the  distributees,  to  whom  one  or 
more  of  the  otiier  shares  were  directed  to  be  paid,  were  satis- 
fied in  whole  or  in  part,  prior  to  the  decree ;  and  that  the 
distributees  of  two  of  the  shares  had,  prior  to  the  decree,  exe- 
cuted to  the  administrator  a  release  of  their  claims. 

Of  the  competency  of  evidence  taken  under  an  order  of  this 
court  to  be  used  upon  the  hearing  of  an  appeal,  there  can  be 
no  doubt.  It  cannot  be  denied  that  the  taking  of  additional 
evidence  upon  the  merits  of  the  case,  to  be  used  upon  the 
hearing  before  an  appellate  tribunal,  is  apparently  incongru- 


508  PREROGATIVE  COURT. 

Sayre's  Adm'r  v.  Sayre. 

ous,  and  is  utterly  inconsistent  witli  the  established  principles 
both  of  the  courts  of  common  law  and  of  equity.  But  the 
well  settled  rule  of  the  ecclesiastical  courts  is,  that  such  evi- 
dence is  admissible,  and  the  uniform  practice  of  this  court  is 
in  accordance  with  that  rule.  Consei\s  Eecles.  Prac.  216,  part 
5,  sec.  5,  §  3  ;  HaWs  Adm.  Prac.  101  ;  Chambers  v.  Sander- 
land,  Haht.  Dig.  216,  §  3;  Read  v.  Drake,  1  Green's  Ch. 
B.7S. 

The  rule,  as  stated  by  Conset,  is  that  "  in  a  cause  of  appeal 
from  a  definitive  sentence,  it  is  lawful,  both  for  the  party  ap- 
pealing, and  the  party  appellate,  to  allege  things  not  alleged 
before  the  judge  from  whom  it  is  api)ealed  ;  and  to  prove 
things  not  proved,  so  as  the  publication  of  the  witnesses  pro- 
duced in  the  first  instance  hinder  not.  But  it  is  otherwise  ia 
a  cause  of  ajipeal  from  grievances,  which  ought  to  be  proved 
by  the  proceedings,  and  the  act  of  the  judge  from  whom  it  is 
appealed." 

It  would  seem  from  the  reported  language  of  Chancellor 
Williamson,  in  Chambers  v.  Sunderland,  that  he  regarded 
the  rule  as  not  of  general  application  ;  but  the  brief  note  of 
the  opinion  furnishes  no  clue  as  to  what  he  regarded  as  the 
nature,  or  extent  of  its  limitation.  It  will  perhaps  be  found 
to  extend  only  to  that  class  of  cases  in  which  the  Prerogative 
Court  exercises  original,  as  well  as  appellate  jurisdiction. 
However  this  may  be,  the  present  case  is  clearly  within  the 
operation  of  the  rule. 

It  is  insisted  that  the  decree  of  the  Orphans  Court  is 
illegal,  because  it  appears  that  the  decree  is  made  in  favor 
of  parties  who  were  not  applicants  for  the  decree,  and  whose 
shares  are  shown  to  have  been  satisfied  or  released.  It  is 
claimed  that  the  decree  should  be  made  only  in  favor  of  such 
of  the  next  of  kin  as  ap[)ly  for  the  decree ;  and  that  no  decree 
can  or  ought  to  be  made  in  favor  of  a  jiarty  whose  claim  is 
shown  to  be  satisfied  or  released.  Upon  the  argument,  the 
objection  appeared  to  me  to  have  much  weight,  inasmuch  as 
there   appears    upon    the   record,  a  final  decree  against  the 


MAY  TERM,  1863.  509 

Sayre's  Adra'r  v.  Sayre. 

administrator,  in  favor  of  a  party  whose  claim  is  in  fact  ex- 
tinguisiied. 

But  I  am  satisfied  that  the  objection  is  not  well  founded, 
and  that  the  apparent  difficulty  n suits  from  mistaking  the 
true  office  and  operation  of  the  decree  for  distribution.  Tiie 
decree  is  undoubtedly  final  and  conclusive  between  the  ad- 
ministrator and  the  distributees,  as  to  the  amount  of  each 
share,  and  as  to  the  party  entitled  to  receive  it.  Thus,  in  an 
action  against  the  administrator  for  the  recovery  of  a  dis- 
tributive share,  it  would  be  conclusive  evidence  of  the  amount 
to  which  the  plaintiff^  is  entitled.  So  the  decree  would  be  an 
cifectual  protection  to  the  administrator,  against  all  claims 
for  moneys  paid  pursuant  to  the  decree,  although  it  should 
prove  that  the  decree  was  erroneous,  and  the  money  paid  to 
a  party  not  entitled.  The  remedy  in  such  case,  by  a  party 
who  has  been  deprived  of  his  rights  by  the  decree,  is  not 
against  the  administrator,  but  against  the  distributees  who 
have  wrongfully  received  the  estate.  In  their  favor,  as 
against  the  rightful  claimant,  the  decree  would  not  operate. 
This  subject  was  considered  and  decided  by  this  court  in  the 
recent  case  of  Exton,  Adm'r,  v.  Zide,  1  McCarter' 601,  where 
the  Chief  Justice  sat  and  advised  with  the  Ordinary. 

But  even  as  between  the  administrator  and  the  distributee, 
the  decree  is  final  only  as  to  the  amount  of  the  respective 
shares,  and  the  persons  entitled  by  law  to  receive  them.  It 
is  no  part  of  the  office  of  the  decree,  to  settle  whether  the 
share  has  been  paid  in  whole  or  in  part;  or  whether  the 
legal  or  equitable  interest  in  the  fund  may  have  been  as- 
signed. The  law  settles  with  great  precision,  to  whom  the 
shares  of  the  estate  shall  be  allotted  in  making  the  distribu- 
tion.    Mx.  Big.  278,  §  12,  13. 

The  office  of  the  decree  is  simply  declaratory  of  the  rights  of 
the  legal  representatives,  or  next  of  kin,  in  the  estate  of  the 
intestate.  Beyond  that,  it  professes  not  to  decide,  and  in  the 
very  nature  of  the  case,  it  can  decide  nothing.  The  claims 
may  be  paid,  or  released,  or  transferred  to  other  parties,  but 
these  are  questions  with  which  the   decree   has   no   concern, 

Vol.  I.  2  r 


510  PREROGATIVE  COURT. 

Sayre's  Adm'r  y.  Sayre. 

and  which  the  court  have  neither  the  power,  nor  the  means 
of  investigating.  If  the  administrator  should  allege  that  he 
had  paid  tiie  claim,  how  is  that  question  to  be  settled  ?  It 
can  only  be  properly  tried  by  suit.  But  no  acfion  can  be 
brought  by  the  claimant,  until  the  decree  of  distribution  is 
made.  The  decree,  it  would  seem,  must  of  necessity  be  made, 
in  order  that  the  right  may  be  properly  tried  and  decided. 

In  like  manner  the  decree  upon  the  final  settlement  and 
allowance  of  the  administrator's  accounts,  is  final  and  con- 
clusive upon  all  parties  interested.  It  ascertains  and  de- 
clares the  net  balance  in  the  administrator's  hands.  It  fixes 
the  sum  for  which  he  must  account  to  the  distributees.  But 
whether  it  has  been  already  paid,  or  is  still  in  the  hands  of 
the  administrator,  it  does  not  decide.  It  leaves  that  to  be 
ascertained  and  settled  when  the  claim  shall  come  to  be  en- 
forced. The  general  decree  for  distribution,  which  wa? 
formerly  in  common  use,  simply  directed  the  balance  to  be 
j)aid  to  the  persons  entitled  by  law  (o  receive  the  same.  The 
special  order  for  distribution,  ascertains  further  who  those 
persons  are.  But  it  does  not  profess  to  settle  whether  the 
claims  have  been  paid,  or  released,  or  assigned,  any  more 
than  does  the  general  decree  for  the  settlement  of  the  estate. 
The  order  for  distribution  may  be  made  at  the  instance  of 
the  administrator,  or  of  any  one  of  the  distributees.  If  made 
at  the  time  of  the  settlement  of  the  estate,  it  is  consequent 
uj)on  the  decree  for  settlement.  No  further  notice  is  neces- 
sary. The  notice  to  the  next  of  kin  is  in  most  cases  con- 
••tructive,  not  actual  notice.  The  decree  for  distribution  is 
tnade  in  their  absence,  without  any  actual  knowledge  of  the 
proceeding.  How  is  the  court,  under  such  circumstances,  to 
lecide  whether  payments  claimed  to  have  been  made  by  the 
idministrator,  have  been  made  or  not?  The  rights  of  the 
)arty  cannot  thus  be  decided.  The  statute  does  not  author- 
ize it. 

Nor  can  a  separate  decree  be  made  at  the  instance  of 
each  of  the  claimants.  The  statute  clearly  contemplates 
but  one  decree.     By  one  decree  only,  can  the  administrator  be 


MAY  TERM,  1863.  511 

Sayre's  Adm'r  v.  Sayre. 

pffectually  protected.  The  decrees,  if  several,  may  vary  in 
amount.  It  may  appear  uj)on  the  first  application,  that  there 
are  but  two  claimants,  and  the  applicant  may  receive  the 
half  of  the  estate,  wlten  it  may  subsequently  prove  that 
there  were,  in  truth,  three  or  more.  Making  separate  de- 
crees must  lead  to  endless  difficulty.  I  am  satisfied  that  the 
proper  j)ractice  was  adopted  by  the  Orphans  Court  in  this 
case.  Even  if  the  evidence  now  before  this  court,  as  to  the 
jiaynient  and  release  of  some  of  the  claims,  had  been  before 
them,  it  would  have  been  irrelevant  to  the  question  which 
they  were  called  on  to  decide.  For  the  same  reason,  I  deem 
it  irrelevsTit  to  the  question  at  issue  here. 

The  evidence  taken  before  the  Orphans  Court,  has  not 
been  sent  up  with  the  papers.  It  does  not  appear  that  it  was 
reduced  to  wri()ing.  Tlie  evidence  taken  on  the  appeal,  shows 
that  Hannah  Ward,  one  of  tlie  distributees,  died  on  the  sev- 
enteenth of  May,  1819.  When  the  intestate  died,  does  not 
appear,  nor  whether  Hannah  survived  him.  She  left  an  only 
daughter,  whose  claim  against  the  estate  a[)pears  to  have  been 
satisfied.  The  share  of  Katy  Thompson,  one  of  the  sisters 
of  the  intestate,  is  by  the  decree  directed  to  be  paid  to  Sarah 
Morgan  and  Moses  Thompson,  two  of  her  children.  It  ap- 
pears that  she  left  two  other  children,  viz.  Aaron  O.  Thomp- 
son, and  Elizabeth,  who  married  John  Harvey  Jaques. 
Whether  they  are  living  or  dead  ;  and  if  dead,  when  they 
died  ;  or  whether  they  left  issue,  does  not  appear.  All  the 
children  have  released  their  claim  upon  the  estate.  In  regard 
to  both  these  shares,  the  decree  will  probably  require  to  be 
ci)rrected.  The  evidence,  as  it  stands,  does  not  show  cleaply 
who,  at  the  date  of  the  decree,  were  the  legal  representatives 
of  those  shares.  It  can  in  no  wise  affect  the  real  matter  in 
controversy.  The  number  of  shares  declared,  and  the  amount 
apportioned  to  each  of  the  other  distributees,  is  admitted  to 
be  correct. 

The  decree  will  be  corrected  in  accordance  with  the  facts, 
U])on  the  production  of  the  proper  evidence,  or  by  consent  of 
counsel,  without  costs  to  either  party  as  against  the  other. 


512  PREROGATIVE  COURT. 


Vreeland  v.  Vreeland's  Adin'r. 


OCTOBER    TERM,    1863. 

John  J.  Veeeland  and  wife  vs.  Hexry  Schoonmaker, 
administrator  of  Enoch  J.  Vreeland,  deceased. 

1.  The  act  of  1852,  "for  the  better  securing  the  property  of  married 
women,"  Nix.  Dig.  503,  confers  upon  the  wife  no  power  of  aliening  or 
disposing  of  her  separate  property ;  she  can  only  do  so  by  the  consent, 
and  with  the  concurrence  of  her  husband.  She  has  the  right  of  owner- 
ehip,  without  the  power  of  disposition. 

2.  The  right  of  the  husband  to  the  wife's  choses  in  action,  as  well  as  to 
her  other  property,  real  and  personal,  was  extinguished  by  the  act  of  1852. 

3.  A  bond  given  to  the  wife  in  her  own  name,  and  accepted  by  her  in 
lieu  of  specific  real  and  personal  property  to  which  she  was  entitled  by 
inheritance,  remains  absolutely  hers,  as  if  she  were  a  single  female,  and 
is  not  subject  to  the  disposal  of  her  husband. 

4.  The  payment  of  such  bond  at  its  maturity  to  the  husband,  its  subse- 
quent investment  by  him  in  his  own  name,  without  ol)jection  by  the  wife, 
and  his  receipt  of  the  interest,  is  no  evidence  (since  tlie  act  of  1852)  of  the 
transfer  of  tlie  property  from  the  wife  to  the  husband,  or  of  the  determi- 
nation of  her  interest. 

5.  The  reduction  of  a  chose  in  action  (the  separate  property  of  the  wife) 
into  possession,  by  the  husband,  without  tiie  consent  of  the  wife,  does  not 
change  the  title  of  the  property.  The  husband  is  accountable  for  so  7nuch 
of  the  estate  of  the  wife,  secured  to  her  separate  use,  as  has  come  into  his 
hands. 

6.  Irrespective  of  the  rights  of  the  wife  under  the  act  of  1852,  it  is  not 
every  reduction  by  the  husband,  of  the  wife's  choses  in  action  into  posses- 
sion, that  will  vest  the  property  absolutely  in  the  husband.  The  owner- 
ship follows  the  will  of  ihe  husband.  But  under  that  act,  the  husband 
has  no  right  to  convert  the  wife's  choses  in  action  to  his  own  use.  Such 
conversion  is  a  violation  of  the  rights  of  the  wife. 

7.  The  wife's  assent  to  the  reduction  by  the  husband,  of  her  choses  in 
action  into  possession,  for  the  mere  purpose  of  re-investment,  is  no  evidence 
of  her  assent  to  its  conversion  to  the  use  of  the  husband. 

8.  If  the  wife's  separate  property  consist  of  land,  and  she  lives  upon  it, 
the  husband  may  enjoy  it  jointly  with  her ;  if  of  chattels  in  possession, 
the  husband  may  use  them. 

9.  Though  the  wife  may  hold  property  in  her  own  name,  under  the  act 
of  1852,  as  if  she  were  a  feme  sole,  she  can  make  no  valid  contract  in  re- 


OCTOBER  TER:\r,  1863.  513 

Vreeland  v.  Vreeland's  Adtn'r. 

gard  to  it,  nor  can  she  enforce  its  collection,  without  the  intervention  of 
her  husband. 

10.  The  fact  that  wliile  a  husband  and  wife  are  living  together,  he  should 
be  permitted  to  take  the  interest  or  profits  of  her  separate  estate  for  their 
mutual  benefit,  or  for  Iiis  own  use,  should,  as  between  the  husband  and  wife, 
raise  no  presumption  prejudicial  to  her  right. 

11.  The  second  section  of  the  act  of  1852  does  not  relate  only  to  the 
property  in  existence  when  the  law  went  into  operation  ;  it  applies  equally 
to  after  acquired  property. 

12.  The  bond  having  been  collected  by  the  husband,  and  the  money  in- 
vested in  his  own  name,  the  widow  caimot  claim  the  protection  of  the  act 
of  1851.  Nix.  Dig.  282,  §  35.  That  act  extends  only  to  the  specific  chat- 
tel or  chose  in  action. 

13.  The  Orphans  Court  has  no  authority  to  try  disputed  claims,  except 
in  the  case  of  insolvent  estates.  In  such  case,  either  the  executor  or  ad- 
ministrator, or  any  person  interested,  may  file  exceptions  against  the  claim 
of  any  creditor,  and  the  court  are  to  liear  the  proofs,  and  decree  and  deter- 
mine in  regard  to  the  validity  of  the  claims.  It  is  a  settled  principle,  that 
the  Orphans  Court  is  not  the  proper  tribunal  for  the  trial  of  disputed 
claims.  But  by  a  disputed  claim  here,  is  meant  a  claim  which  is  disputed 
by  the  executor  or  administrator,  not  a  claim  which  the  legatee  or  next  of 
kin  may  deem  unfounded  or  unjust. 

14.  If  the  executor  or  administrator  disputes  a  claim,  or  refuses  to  pay 
it,  the  Orphans  Court  cannot  allow  it,  or  compel  the  executor  or  adminis- 
trator to  include  it  in  his  account.  To  justify  the  Orphans  Court  in  allow- 
ing a  claim  against  an  estate,  it  must  appear  that  the  executor  or  adminis- 
trator assented  to,  or  recognized  it  as  a  debt  due  from  the  estate.  But  if 
the  executor  or  administrator  admit  the  claim,  and  pray  allowance  for  it 
in  his  account,  it  is  not  a  disputed  claim  within  the  meaning  of  the  rule, 
and  falls  properly  within  the  jurisdiction  of  the  Orphans  Court. 

15.  Claims  against  the  estate,  paid  by  the  executor  or  administrator, 
constitute  properly  a  pxrt  of  his  account.  If  a  claim  paid  by  an  executor 
or  administrator,  is  illegal  and  unfounded,  the  charge  in  the  account  is  open 
to  exception,  and  the  question  thus  brought  within  the  jurisdiction  of  the 
Orphans  Court. 

16.  The  mere  fact  that  a  debt  or  legacy  has  not  been  actually  paid,  con- 
stitutes no  objection  to  its  allowance  upon  the  settlement  of  the  account, 
if  its  existence  is  clearly  established.  By  the  settlement,  the  executor  or 
administrator  becomes  liable  for  the  amount  thus  allowed. 

17.  If  au  administrator,  by  collusion  with  the  claimant,  claims  allow- 
ance for  a  debt  not  paid,  in  order  to  withdraw  the  cognizance  of  the  ques- 
tion from  the  ordinary  tribunals  of  law  or  equity,  it  is  a  good  ground  of 
exception  before  the  Orphans  Court,  and  the  item  may  be  stricken  from 
the  account. 


614  PREROGATIVE  COURT. 

Vreeland  v.  Vreeland's  Adru'r. 

18.  An  administrator  is  accountable  for  all  property  of  the  deceased, 
which  came  to  his  hands  to  be  administei'ed.  He  cannot  be  relieved  from 
the  accountability  on  the  ground  of  loss,  where  the  loss  wns  occasioned  by 
any  default  of  his  own. 

19.  Loans  made  on  private  or  personal  security,  are  at  the  risk  of  the 
trustees,' who  are  personally  answerable  if  the  security  prove  defective. 
To  afford  complete  indemnity  to  the  trustee  against  the  hazard  of  respon- 
Bibility  for  loss,  the  investment  must  be  made  in  goverment  stocks,  or  upon 
adequate  real  security. 

20.  An  executor  or  administrator  cannot  sell,  and  part  with  the  posses- 
sion of  assets  which  have  come  to  his  hands  to  be  adminLstered,  without 
requiring  security  for  the  price.  If  he  sell  under  judicial  sanction,  he  must 
pursue  strictly  the  order  of  the  court.  If  he  sell  upon  credit,  without 
judicial  sanction  and  upon  his  own  discretion,  he  must  use  due  caution  in 
obtaining  adequate  security.  If  he  do  otherwise,  he  acts  at  his  peril ;  and 
if  a  loss  is  sustained  by  the  insolvency  of  the  purchaser,  he  is  guilty  of  a 
devastavit. 

This  case  came  before  the  Ordinary  on  appeal  from  a  de- 
cree of  the  Orphans  Court  of  the  county  of  Bergen. 

Enoch  J.  Vreeland,  the  intestate,  died  May  4tli,  1861, 
leaving  him  surviving,  his  wife,  Sophia  Vreeland,  but  no 
children.  Eleanor  Vreeland,  one  of  the  appellants,  is  his 
sister,  and  only  next  of  kin.  The  respondent,  Henry  Schoon- 
maker,  ministered  on  his  estate,  filed  an  inventory  thereof, 
araoiuiting  to  $10,542.24,  and,  on  the  tenth  of  September, 
1862,  filed  his  final  account,  showing 

Debits  to  the  amount  of $11,234  49 

Credits  to  the  amount  of. 3,565  54 

And  a  balance  of $7,668  95 

Among  the  credits  claimed  by  the  administrator  in  his 
account,  are  the  following: 

"  He  further  prays  allowance  for  amount  received 
by  Sophia  Vreeland,  widow,  by  bequest  from  her 
father  during  coverture  with  intestate,  and  which, 
at  his  death,  remained  in  his  possession,  $2,000  00 

"  He  further  prays  allowance  for  amount  due 
from  John  Blauvelt,  on  vendue  book  (desperate),  11  81 


OCTOBER  TERM,  1863.  515 

Vreeland  v.  Vreeland's  Adni'r. 

"Also,  for  amount  due  from  Peter  Magiuuis,  ou 
vendue  book  (desperate),  $55.08 

To  these  credits  the  appelhints  excepted.  Evidence  was 
thereupon  taken  before  the  judges  of  the  Orphans  Court. 
On  the  eighth  of  December,  1862,  the  court  made  a  decree 
overruling  the  exceptions  and  confirming  the  account,  where- 
upon the  exceptants  appealed. 

The  case,  on  the  items  excepted  to,  is  this : 

The  two  small  items  of  i$l  1.81  and  $55.08,  are  amounts 
due  for  goods  of  the  intestate,  which  came  to  the  hands  of 
the  administrators,  and  which  the  latter  sold  at  vendue. 
Having  failed  to  collect  the  proceeds  of  the  sale,  he  asks  to 
be  discharged  the  amount.  By  his  own  evidence,  it  appears 
that  one  of  tlie  parties  to  whom  he  sold,  was  not  deemed  re- 
sponsible. 

The  item  of  $2000  is  claimed  to  be  money  of  the  intes- 
tate's widow,  Sophia  Vreeland,  which  came  to  her  in  1855, 
from  the  estates  of  her  father  and  mother,  and  which,  having 
been  received  by  the  intestate  in  his  lifetime,  swelled  the 
amount  of  his  inventory  to  that  extent.  The  administrator 
claims  the  right  to  retain  that  amount  for  the  benefit  of  thw 
widow. 

The  facts  in  relation  to  this  money  api)ear  to  be  as  follows; 
Abraham  L.  Ackerman,  the  father  of  Sophia  Vreeland,  the 
intestate's  widow,  died  in  1855,  leaving  personal  property  to 
the  amount  of  $1500.  Agnes  Ackerman,  his  wife,  died  about 
the  year  1850.  She  owned  the  homestead  farm.  In  tliis  pro- 
perty Sophia  Vreeland  had  an  interest,  as  one  of  the  heirs.  In 
December,  1855,  Sophia  Vreeland*s  brothers,  Lawrence  and 
Abraham,  (whjie  her  husband  was  living)  settled  with  her 
and  her  eister.,  Hester,  by  giving  them  $2000  apiece,  for 
their  siiare  of  the  father's  and  mother's  estates,  giving  to 
Mrs.  Vreeland,  for  her  share,  their  joint  aiuj  several  bond 
for  $2C00,  dated  December  24th,  185q,  r^d  payable  May  1st, 
1856,  She  and  her  .=;ister  gave  their  brothers  a  release  of  all 
their  interest  in  their  father's  ,^ud   mother's  estates,  by  deecl 


516  PREROGATIVE  COURT. 

VreeJand  v.  Vreeland's  Adm'r. 

dated  December  24th,  1855.  Lawrence  Ackerraan  paid  her 
his  $1000  on  the  first  of  May,  1856,  which  M'as  put  out  at 
interest  in  Enoch  J.  Vreeland's  name.  Abraham  K.  Acker- 
man  paid  his  $1000  by  giving  his  bond  and  mortgage  there- 
for, when  the  joint  bond  became  due.  On  tliis  bond  he  paid 
$400  to  Enoch  J.  Vreeland,  a  day  or  two  before  liis  death. 
This  money  was  given  to  the  administrator  by  Mrs!  Vree- 
land. He  inventoried  it,  and  loaned  it  to  Richard  Berdan, 
and  took  his  note  therefor,  payable  to  Sophia  Vreeland,  or 
bearer.  This  note  is  now  held  by  the  administrator  as  part 
of  the  estate  of  Enoch  J.  Vreeland.  The  balance,  $600,  was 
paid  by  note,  dated  May  1st,  1861,  which  was  inventoried  by 
the  administrator,  and  afterwards  paid  to  him.  He  put  it 
all  out  at  interest  in  his  name,  and  holds  the  notes  as  securi- 
ties. 

Hayes,  for  the  appellants. 

1.  The  administrator  must  make  good  the  amonnt  of  the 
small  items  for  which  allowance  was  made. 

He  knew  that  one  of  the  parties  was  not  responsible.  He 
should  have  required  security.  Having  failed  to  do  so,  he 
has  become  responsible  by  his  negligence. 

2.  The  $2000  is  not  due  Mrs  Vreeland.  The  money  was 
mixed  with  her  husband's,  and  so  became  part  of  his  general 
pro[)erty. 

The  act  of  1851  {Nix.  Dig.  282)  refers  to  specific  chattels, 
furniture,  &.Q. 

Wortendyhe,  for  the  respondents. 

We  base  our  claim  for  $2000  upon  the  principle  contained 
in  the  acts  of  1851  and  1852. 

These  enactments  limit  the  property  of  the  wife  to  her 
separate  use,  as  if  it  had  been  granted  to  her  separate  use; 
as  if,  before  the  statute,  it  had  been  so  granted. 

1.  The  sale  or  transfer  by  Mrs.  Vreeland  to  her  brothers 
was  not  a  strict  sale,  but  a  fair  compromise  or  adjustment  of 


OCTOBER  TERM,  18G3.  517 

i 

Vreeland  v.  Vreeland's  Adm'r. 

what  ought  to  have  been  done  by  the  will.  Hence  witnesses 
called  it  a  legacy. 

If  the  inheritance  was  the  property  of  the  wife,  it  comes 
within  the  policy  of  the  married  women's  and  widows'  acts. 
{Nix.  Dig.  503,  282.)      * 

The  bond  was  given  in  her  name,  in  the  j^reseuce  and  with 
the  assent  of  her  husband.  Lawrence  Ackerman  paid  §1000, 
whicii  was  invested  in  bond  and  mortgage.  Abraham  paid 
$400  in  cash,  which  was  loaned  by  the  administrator,  and 
note  taken  therefor,  payable  to  Soj)hia  Vreeland,  or  bearer. 
The  §600  he  paid  first  by  note,  and  eventually  in  cash.  It 
was  put  out  at  interest  by  the  administrator,  in  his  name,  and 
he  now  holds  the  notes  therefor.  The  money  was,  therefore, 
in  the  estate. 

Richard  Berdan  swore,  that  Enoch  J.  Vreeland  said  the 
money  was  his  wife's.  He  intended  to  separate  that  money. 
That  intention  was  in  course  of  execution. 

This  question  has  been  up  in  courts  of  equity  before  now. 
It  is  not  material  whether  you  call  it  a  debt  or  any  other 
claim.  2  Williams  on  Ex^rs  lQ'2d ;  State  \.  Reigavt,  1  Gill 
1,  note. 

No  question  was  raised  about  the  money  not  having  been 
paid.  No  inquiry  was  made  as  to  how  it  was  paid.  By  the 
very  filing  of  the  account  it  is  appropriated  to  the  use  of  Mrs. 
Vreeland.     Moslier  v  Hubbard,  13  Johns.  R.  510. 

2,  As  to  the  items  sold  and  money  not  collected.  2  Wil- 
liams on  Ex^rs  1630-1629  ;  Meeher  v.  Vanderveers  Ex'rs,  3 
Green's  B.  292. 

Reasonable  care  and  proper  diligence  only  required.  11 
Wend.  361  ;  6  Haht.  R.  145. 

Bradley,  in  reply. 

I.  The  administrator  having  never  paid  this  money,  cannot 
be  allowed  a  credit  for  it.  Dayton  on  Sarr.  508-9 ;  Willcox 
V.  Smith,  26  Barb.  346. 

If  it  were  a  debt  due  himself,  so  as  to  give  him  the  right 
of  retainer,  he  might  have  appropriated  it ;   but  he  has  not 


518  PREROGATIVE  COURT. 

Vreeland  v.  Vreeland's  Adm'r. 

the  prerogative  of  assuming  the  debts  of  the  intestate  as  his 
own,  and  of  pocketing  so  much  money  as  will  be  sufficient  to 
pay  tiiem.  He  may  not  pay  them  ;  they  may  never  be  de- 
manded. If  tiiey  are  not  paid,  the  benefit  belongs  to  the 
estate  and  next  of  kin,  and  not  to  the  administrator. 

The  Orphans  (^ourt  cannot  adjudicate  disputed  claims,  ex- 
cept in  cases  of  insolvent  estates.  Ililler  v.  Pdtit,  1  Hair. 
421 ;  Nix.  Big.  281,  §  29  ;  589,  §  70,  71.  The  administra- 
tor puts  it  forward  as  an  experiment  on  the  court,  in  order  to 
make  the  court  the  tribunal  for  the  collection  of  the  debt. 

The  appellants  question  the  widow's  right  to  recover  that 
money.  Let  her  resort  to  the  proper  tribunal  to  establish 
her  claim. 

Or,  if  the  administrator  will  take  the  responsibility  of 
paying  her,  let  him  do  so,  and  then  bring  in  another  account. 

It  would  open  the  door  to  great  frauds,  to  allow  an  execu- 
tor or  administrator  to  credit  himself  with  the  debts  of  an 
estate  without  having  paid  them. 

He  might  never  pay  them  at  all,  and  leave  them  as  an  en- 
cumbrance on  the  legatees  and  next  of  kin. 

He  might  never  have  to  pay  them,  and  thereby  make  a 
clear  gain  out  of  the  money  belonging  to  the  estate. 

He  might  compromise  them  at  less  than  the  amount 
charged  for. 

The  administrator  cannot  claim  this  allowance,  as  for  money 
received  by  mistake.  No  money  of  the  widow  stood  separate 
from  the  intestate's  property.  Johnson  v.  Corbert,  11  Paige 
265. 

II.  The  widow,  Sophia  Vreeland,  is  not  entitled  to  recover 
this  claim  of  the  administrator  in  any  tribunal. 

1.  Not  under  the  widow's  act  of  1851.     [Nix.  Dig.  282.) 

By  that  act,  the  widow  is  entitled  to  demand  of  the  admin- 
istrator "  all  such  goods  and  chattels,  choses  in  action,  or  other 
personal  property  which  at  coverture  belonged  to  her,  or 
which,  during  coverture,  came  to  her  by  bequest,  gift,  or 
inheritance,  and  which,  at  her  husband's  death,  remained  \n 
his  possession," 


OCTOBER  TERM,  1863.  519 


Vreeland  v.  Vreeland'a  Adra'r. 


This  ^2000  came  to  her  undoubtedly,  during  the  coverture, 
by  "  inheritauce,"  not  bequest,  as  alleged  iu  the  account. 
But  it  did  not  remain  "  iu  her  husband's  possession  at  his 
death."  In  order  that  her  property  may  remain  in  his  pos- 
session, it  must  be  capable  of  identification. 

If  it  was  money,  and  was  lent  or  (/Iven  to  him,  or  allowed 
to  be  mixed  with  his  money,  it  became  his,  not  hers.  It  be- 
came a  mere  debt,  but  not  a  legal  debt,  for  a  man  cannot  owe 
his  wife  a  debt ;  a  contract  cannot  be  made  between  them. 

Her  property  iu  it  ceased  as  soon  as  its  identity  was  lost. 
It  was  then  a  mere  debt,  which,  as  between  husband  and 
wife,  is  extinguished  as  soou  as  created.  As  soon  ixs,  property 
ceases,  debt  arises. 

2.  Nor  is  she  entitled  to  recover  this  money  under  the 
married  women's  act  of  1852.     {Nix.  Dig.  503.) 

"  The  real  and  personal  property  of  a  married  woman, 
with  its  rents,  issues,  and  profits,  shall  not  be  subject  to  the 
disposal  of  her  husband,  but  shall  be  her  sole  and  separate 
])roperty,  as  if  she  were  single."  Section  2.  This  relates 
to  property  in  existence  when  the  law  was  passed. 

"  It  shall  be  lawful  for  a  married  woman  to  receive  by  gift, 
grant,  devise,  or  bequest,  and  hold  to  her  sole  and  separate 
use,  as  if  she  were  single,  real  and  personal  property,  and  its 
rents,  issues,  and  j)rofits,  and  the  same  shall  not  be  subject  to 
her  husband's  disposal,  nor  liable  for  his  debts."     Section   3. 

But  if  she  does  not  choose  to  receive  it;  if  she  chooses  to 
hand  it  over  to  him,  and  let  him  mix  it  with  his  own,  she 
loses  it. 

Slie  cannot  lend  it  to  hivi.  They  cannot  contract  together. 
No  debt  can  be  created  between  them.  She  cannot  deal  with 
her  husband  in  that  way. 

3.  Besides,  this  ^2000  was  in  part  in  consideration  of  the 
husband's  release.  He  was  entitled  to  curtesy  in  the  lands, 
and  his  release  obtained.  Hoss  v.  Adams,  4  Dutcher  160; 
Naylor  v.  Fidd,  5  Dutcher  292. 

4.  The  declaration  of  Richard  Berdan,  that  Enoch  J.  Vree- 
land told  him  that  Mrs.  Vreeland  had  $2000  to  put  out,  and 


520  PREROGATIVE  COURT. 

Vreeland  v.  Vreeland's  Adm'r. 

that  he  got  $1000  of  it,  is  not  competent  evidence.     Boykm 
V.  Meeker,  4  Butcher  274. 

3Ir.  Bradley  further  cited  and  reviewed  the  following 
cases :  Jackson  v.  Miller,  1  Dutcher  90 ;  Ex'r  of  Henry  v. 
Dilley,  Ibid.  302 ;  Johnson  v.  Farker,  3  Dutcher  239  ;  Van- 
note  V.  Downey,  4  Dutcher  219;  Wheaton  v.  Cooper,  1  Beas. 
221  ;  (ry-em  v.  Pallas,  Ibid.  267  ;  Pentz  v.  Simoiison,  2  5eas. 
232  ;  Wilson  v.  Brown,  Ibid.  Ill  ;  Skillman  v.  Skillman, 
Ibid.  403  ;  3  Rev.  Stat.  {N.  Y.)  183,  §  81  ;  3Iagee  v.  Vedder, 
6  Barb.  352  ;  Wilson  v.  Baptist  Educ.  Society,  10  .Bar6.  308, 
316,  320;  Disosway  v.  5a?iZ;  of  Washington,  24  Barb.  60; 
^?uZ/-m-s  V,  Wallace,  29  Barb.  250  ;  Dayton  on  Surr.  {1S61) 
378,  552,  and  note. 

The  Okdinary.  The  administrator  of  Enoch  J.  Vree- 
land, upon  the  settlement  of  his  accounts  in  the  Orphans 
Court,  among  other  items  for  which  he  claimed  credit, 
prayed  allowance  for  $2000,  "amount  received  by  Sopiiia 
Vreeland  (widow  of  the  intestate),  by  bequest  from  her 
father  during  coverture  with  the  intestate,  and  which,  at  his 
death,  remained  in  his  possession."  Exceptions  filed  to  the 
account  by  tiie  next  of  kin  of  the  intestate,  were  by  the  de- 
cree of  the  court  overruled,  and  the  account  was  allowed  as 
audited  and  stated  by  the  surrogate.  From  this  decree  the 
exceptants  appealed. 

The  material  question  in  the  cause  is,  whether  the  sum  of 
$2000,  which  formed  the  subject  of  exception,  was  in  fact 
the  j)ro])erty  of  the  widow,  or  whether  it  belonged  to  the 
estate  of  her  husband.  It  is  admitted  that  the  sum  of 
$2000  came  to  Mrs.  Vreeland  during  her  coverture,  in  the 
year  1855,  from  the  estates  of  her  father  and  mother,  and 
tiiat  it  passed  into  her  husband's  hands  and  was  inventoried. 
Her  mother  died  about  the  year  1850,  seized  of  certain  real 
estate.  Her  father,  Abialiam  L.  Ackerman,  died  on  the 
9th  of  April,  1855,  intestate,  whereupon  his  children  became 
each  entitled  to  a  share  of  his  estate,  as  well  as  of  the  estate 
of  the   mother.     In  December,   1855,  Lawrence  and  Abra- 


OCTOBER  TERM,  1863.  521 

Vreeland  v.  Vreeland's  Adm'r. 

ham  Ackerraan,  two  of  the  sons  of  Abraham  L.  Ackerman, 
agreed  with  their  sisters  to  give  them  each  $2000  for  their 
respective  shares  of  their  fatiier's  and  mother's  estates.  In 
fulfilment  of  this  agreement,  on  the  24th  of  December,  1855, 
I^awrence  and  Abraham  Ackerman  gave  to  Mrs,  Vreeland 
for  her  share,  their  joint  and  several  bond  for  .^2000,  ])ayable 
on  the  first  of  May,  1856.  This  bond  was  given  to  Mrs. 
Vreeland  with  the  knowledge  and  assent  of  her  husband, 
M'ho,  thereupon,  joined  with  his  wife  in  a  conveyance  to  her 
brothers,  of  all  the  real  estate  which  she  inherited  from  her 
mother.  It  is  clear  that  the  property,  both  real  and  ])er- 
sonal,  was  the  property  of  the  wife,  and  by  operation  of  the 
"  act  for  the  better  securing  of  the  property  of  married 
women,"  became  her  sole  and  separate  property,  and  was  not 
subject  to  the  disposal  of  her  husband.  It  is  true  that  she 
had  no  power  of  aliening  or  disposing  of  the  property,  ex- 
ce[)t  by  the  consent  and  with  the  concurrence  of  her  hus- 
band. She  had  the  right  of  ownership,  without  the  power 
of  disj)osing  of  it.  That  power  the  statute  does  not  confer. 
Had  the  property  remained  in  her  possession  undisposed  of, 
upon  the  death  of  her  husband,  it  would  have  been  hers 
absolutely.  It  would  have  formed  no  part  of  her  husband's 
estate.  Is  that  title  lost  by  her  settlement  with  her  brothers, 
and  receiving  their  bond  in  lieu  of  the  estate  to  Avhich  she 
was  specifically  entitled  ?  Had  she  accepted,  in  lieu  of  her 
property,  a  bond  made  payable  to  her  husband,  so  unequivo- 
cal an  exj)ression  of  her  will,  might  be  regarded  as  evidence 
of  her  intention  that  the  property  should  become  her  hus- 
band's. But  the  bond  was  taken  in  her  own  name,  and  was 
made  payable  to  her,  her  executors,  administrators,  or  as- 
signs. Such  bond  was  a  valid  instrument  in  the  wife's  favor 
at  common  law. 

The  husband,  it  is  true,  by  virtue  of  his  marital  rights, 
acquired  a  qualified  right  to  the  property.  He  had  the 
right,  during  the  joint  lives  of  himself  and  wife,  to  collect  the 
money  and  appropriate  it  to  his  own  use.  If  he  survived 
the  wife,  it  was   his.     But  if  the  husband  died  without  VQ 


522  PREROGATIVE  COURT. 

Vreeland  v.  Vreeland's  Adm'r. 

diicing  the  ch()Se  in  action  into  possession,  it  remained  the 
property  of  the  wife.  2  Bl.  Com.  4o4  ;  2  Kent's  Com.  135; 
Ckmci/s  Hasb.  &   Wife  5. 

But  the  right  of  the  husband  to  the  wife's  choses  in  action, 
as  well  as  to  her  other  property,  real  and  personal,  was  ex- 
tinguished by  the  act  of  1852.  The  bond  in  question, 
accepted  by  the  wife  in  lieu  of  the  specific  personal  and  real 
property  which  she  took  by  inheritance,  remained  absolutely 
hers  as  if  she  were  a  single  female,  and  was  not  subject  to 
the  dis{)Osal  of  her  husband.  How  has  her  title  to  that 
property  become  extuiguished  ?  How  has  the  husband  ac- 
quired title  to  it?  It  must  be  borne  in  mind  that  she  had 
both  the,  legal  and  equitable  title  to  the  bond,  and  to  the 
proceeds  of  it.  She  never  assigned  it  to  the  husband.  If 
she  had  done  so,  the  assignment  would  have  been  inopera- 
tive and  v(tid  at  law.  She  can  make  no  valid  contract  with 
any  one,  much  less  with  her  husband,  for  the  transfer  of  her 
legal  rights.  But  it  is  insisted  that  the  facts,  that  the  bond 
at  its  maturity  was  paid  to  the  husband,  and  was  subsequently 
invested  by  the  husband  in  his  own  name,  without  objection 
on  the  part  of  the  wife,  and  the  interest  received  by  him,  are 
plenary  evidence  of  the  transfer  of  the  property  from  the 
wife  to  the  husband,  and  of  the  determination  of  her  interest. 
That  undoubtedly  would  have  been  the  effect  of  the  collec- 
tion of  the  money  by  the  husband,  with  or  without  the  wife's 
consent,  prior  to  the  enabling  act  of  1852.  But  since  the 
passage  of  that  act,  she  takes  and  holds  the  property  as  a 
single  female.  If,  as  a  single  female,  she  had  permitted  a 
third  person,  or  if,  as  a  wife,  she  had  permitted  a  person 
other  than  her  husband,  to  receive  and  collect  her  moneys, 
and  invest  them  in  his  own  name,  it  would  have  afforded  no 
evidence  of  the  renunciation  of  her  right,  or  of  his  owner- 
ship of  the  property.  He  would  be  regarded,  both  at  law 
and  in  equity,  as  her  agent  or  trustee.  The  reduction  of  the 
choses  in  action  into  possession  by  the  husband,  without  the 
consent  of  the  wife,  cannot  change  the  title  of  the  property. 
If  by  marriage  settlement,  the  estate  of  the  wife  be  secured 

\ 


OCTOBER  TERM,  18G3.  523 

Vreeland  v.  Yreeland's  Adm'r. 

to  lier  separate  use,  the  husband  is  accountable  for  tliat  part 
of  it  which  comes  to  his  hands.  2  Kent's  Corn.  1G4.  Irre- 
spective of  tiie  right  of  the  wife  under  the  act  of  1852,  it  is 
not  every  reduction  by  the  husband  of  the  clioses  in  action 
into  possession,  that  will  vest  the  property  absolutely  in  the 
husband.  The  ownershij)  follows  the  wmII  of  the  husband. 
Hinds'  Edate,  5  U'haiion  138  ;  Barron  v.  Barron,  24  Vt. 
375  ;  2  Bl.  Com.  434,  7w(e  2,  %  Shars7.vood. 

The  reduction  into  possession  is,  in  all  such  ca^.es,  prima 
facie  evidence  of  the  conversion  to  his  use.  He  is  exercising  a 
right  which  the  law  gives  hira  over  his  wife's  choses  in  action. 
But  under  the  enabling  act  of  1852,  the  husband  has  no  such 
right  over  the  choses  in  action  of  his  wife.  "  The  absolute 
interest  is  in  the  wife.  A  conversion  of  them  by  the  hus- 
band to  his  own  use,  is  a  violation  of  that  right.  The  law, 
therefore,  will  not  presume,  that  from  the  mere  reduction  of 
the  wife's  choses  in  action  into  possession,  he  intended  to 
convert  them  to  his  own  use,  in  violation  of  the  rights  of  the 
wife.  Nor  will  the  wife's  assent  to  the  reduction  by  the 
husband  of  her  choses  in  action  into  possession,  for  the  mere 
purpose  of  re-investment,  be  evidence  of  her  assent  to  its  con- 
version to  the  use  of  the  husband.  There  is  in  the  case  no 
evidence  of  the  intention  of  the  husband  to  convert  the 
property  to  his  use,  or  of  the  assent  of  the  wife  to  such  con- 
version, other  than  the  mere  fact  that  the  money  due  on  the 
bond  having  been  paid  to  the  wife,  was  permitted  to  be  in- 
vested and  re-invested  by  the  husband  in  his  own  name,  and 
that  the  interest  was  collected  by  him.  These  circumstances, 
in  themselves,  are  not  evidence  of  the  conversion  of  the  wife's 
])r()perty  to  the  use  of  the  husband.  But  the  right  of  the 
wife  does  not  rest  upon  this  evidence  alone.  It  is  shown 
that  an  application  for  a  loan  of  money  having  been  made 
to  the  husband  shortly  before  his  death,  he  told  the  appli- 
cant that  his  wife  had  $2000,  and  he  would  see  what  she  had 
to  say  about  it.  And  he  subsequently  stated  that  his  wife 
had  given  her  consent,  and  thereupon  made  the  loan.  Now 
it  must  be  admitted   that  this  evidence  is  utterly  inadequate 


524  PREROGATIVE  COURT. 

Vreeland  v.  Vreeland's  Adnj'r. 

to  prove  a  transfer  of  property  from  the  husband  to  the 
wife,  but  it  is,  nevertheless,  competent  as  tending  to  evince 
the  absence  of  intention  on  the  part  of  the  Jjusband  to  con- 
vert the  wife's  money  to  his  own  use.  Upon  a  question  be- 
tween the  estate  of  the  husband  and  the  wife, .  I  see  no 
objection  to  tlie  competency  of  this  testimony.  In  Gray^s 
Estate,  1  Barr.  327,  it  was  held,  that  a  husband's  disclaimer 
of  conversion  to  his  own  use,  at  the  time  of  reducing  his 
wife's  choses  in  action  into  possession,  may  be  established  by 
his  subsequent  admissions. 

Nor  is  the  case  materially  altered  by  the  fact,  that  the 
husband  is  permitted  to  take  and  use  the  interest  of  the 
money  while  it  remains  in  his  hands.  That  may  be  done 
for  the  joint  benefit  and  support  of  the  husband  and  wife, 
while  they  live  together.  In  fact,  the  nature  of  the  relation 
is  such,  that  while  it  continues,  neither  can  orflinarily  have 
a  sole  and  exclusive  enjoyment  of  their  individual  property. 
If  the  wife's  property  consists  of  lands,  and  she  lives  upon  it, 
the  husband  may  enjoy  it  jointly  with  her.  If  of  chattels  in 
her  possession,  the  husband  may  use  them.  Tlie  legal  rela- 
tion of  husband  and  wife  is  so  intimate,  that  it  necessarily 
involves,  to  some  extent,  a  common  use  of  their  individual 
property.  It  was  not  intended  that  the  statute  for  the  better 
securing  the  property  of  the  wife,  should  impair  the  intimacy 
and  unity  of  the  marriage  relation.  Walker  v.  Reamy,  12 
Casey  414;  Naylor  v.  Field,  5  Dutcher  292. 

It  is  clear  that  the  intervention  of  no  trustee  is  essential 
to  protect  the  legal  rights  of  the  wife.  That  is  the  necessary 
result  of  the  enabling  act  of  1852.  Her  property  is  protected 
in  her  own  hands,  as  well  against  the  claim  of  the  husband, 
as  against  strangers.  She  may  receive  and  hold  property 
in  her  own  name,  as  if  she  were  a  feme  sole.  But  though 
she  may  hold,  she  cannot  manage  the  property  without  the 
intervention  of  an  agent.  She  can  make  no  valid  contract 
in  regard  to  it,  nor  can  she  enforce  its  collection,  without  the 
intervention  of  her  husband. 

Admitting  that  the  funds  of  the  wife  may  lawfully  be  en- 


OCTOBER  TERM,  1863. 


>zo 


Vreeland  v.  Vreeland's  Adm'r. 


trusted  by  her  to  a  third  person  for  investment,  why  shouhl 
she  be  compelled  to  have  recourse  to  such  agency  ?  Or  why 
shouhl  the  mere  fact  that  they  are  entrusted  to  the  manage- 
ment and  control  of  her  husband,  be  evidence  of  the  renuncia- 
tion of  her  rights,  or  of  the  transfer  of  her  property?  It 
would  seem  that  there  is  no  one  to  whom  the  care  of  the 
wife's  ])ropertv  can  more  naturally,  and  with  more  proj)riety 
be  entrusted,  than  the  husband.  And  if,  while  they  are  living 
together,  he  is  permitted  to  take  the  interest  or  profits  of  the 
estate  for  their  mutual  benefit,  or  for  his  own  use,  it  should, 
as  between  the  husband  and  wife,  raise  no  presumption  pre- 
judicial to  lier  rights.  I  say  as  between  the  husband  and 
wife,  because  it  is  obvious  that,  as  it  regards  the  interests  of 
third  parties,  the  possession  and  control  of  the  funds  of  the 
wife  by  the  husband  in  his  own  name,  may  create  equities 
and  give  rise  to  questions  of  fraud,  which  will  involve  very 
different  considerations.  It  has  been  held  in  tlie  state  of  New 
York,  that  where  the  husband,  by  the  permission  and  agree- 
ment of  the  wife,  has  the  exclusive  control  of  her  separate 
estate  and  its  accumulations,  by  means  whereof  he  is  enabled 
to  obtain  credit  and  carry  on  trade,  the  property  is  liable  to 
the  claims  of  the  husband's  creditors.  Sherman  v.  Elder,  1 
Hilton  476. 

It  is  worthy  of  notice  in  this  connection,  that  the  enabling 
statutes  of  the  state  of  New  York  confer  upon  married  women, 
powers  in  regard  to  the  disposition  and  management  of  their 
estates,  not  conferred  by  the  laws  of  this  state.  The  statute 
of  1848,  as  amended  by  that  of  1849,  enables  a  married 
female  not  only  to  take  and  hold  her  proj)erty  to  her  separate 
use,  but  also  to  convey  and  devise  real  and  personal  j)roperty, 
and  any  interest  therein,  in  the  same  manner  and  with  like 
effect  as  if  she  were  a  feme  sole.  And  by  the  act  of  1860,  it 
is  enacted  that  her  sole  and  separate  property  may  be  used^ 
collected,  and  invested  by  her  in  her  own  name. 

In  the  case  now  under  consideration,  the  question  as  to  tins, 
title  of  the  property,  is  exclusively  between  the  wife  and  tht' 
estate  of  the  husband.     The  question  is  embazr:'^seJ   b"  ui^ 

Vol.  I.  2  k 


52G  PREROGATIVE  COURT. 

Vreeland  v.  Vreeland's  Adni'r. 

intervening  equities,  or  claims  of  creditors.  There  is  a  large 
surplus  in  the  hands  of  the  administrator,  to  be  distributed 
agreeably  to  law.  I  think  the  wife  is  clearly  entitled  to  the 
sum  of  §2000,  for  which  allowance  is  claimed  by  the  admin- 
istrator in  his  account. 

It  was  urged  upon  the  argument,  that  the  second  section 
of  the  act  of  1852  relates  only  to  the  property  in  existence 
when  the  act  was  passed.  I  have  never  untlerstood  that  this 
was  the  true  construction  of  the  statute.  A  directly  contrary 
interi)retation  has  been  adopted,  both  in  this  state  and  the 
state  of  New  York,  where,  with  the  exception  of  the  last 
clause,  the  language  of  the  section  is  identical. 

It  is  the  settled  rule  of  construction  in  New  York,  that 
the  second  section  of  the  act  has  no  application  to  property 
which  a  wife,  married  before  the  act  took  effect,  had  at  the 
time  of  the  marriage,  or  had  already  acquired  during  cover- 
ture, but  that  it  a})plies  to  after  acquired  })r()perty  of  females, 
married  piior  to  the  act.  Snyder  v.  Snyder,  3  Barb.  621  ; 
Holmes  v.  Holmes,  4  Barb.  295  ;  117r/^e  v.  White,  5  Barb, 
474;  Hard  v.  G/ss,  9  Barb.  3GG  ;  Perkins  v.  Cottrell,  16 
Barb.  446;  Smith  v.  Colvin,  17  Barb.  157;  Watson  v.  Boii- 
ney,  2  SandJ.  S.  C.  R.  405  ;  Kelhj  v.  McCarthy,  3  Bradf.  7. 

In  the  case  of  Ex'r  of  Henry  v.  Dillcy,  1  JJutcher  302,  it 
was  held  that  the  act  operated  as  a  protection  of  the  rights  of 
property  of  the  wife,  existing  at  the  time  the  act  took  effect. 
But  it  was  not  decided  in  that  case,  nor  was  it  intended  to  be 
decided,  that  the  act  related  only  to  subsisting  rights.  The 
question  was,  whether  the  second  section  of  the  act  was  de- 
signed at  all  to  affect  subsisting  rights,  and  if  it  was  so  in- 
tended, whether  it  was  not  an  unauthorized  interference  with 
the  vested  interest  of  the  husband  in  the  [M'operty  of  the  wife. 
Admitting  the  decision  in  that  case  to  have  been  correct,  it 
does  not  support  the  position,  that  tlie  section  relates  only  to 
the  property  in  existence  when  the  law  went  into  operation. 
Nor  does  the  case  of  Vannote  v.  Boivncy,  4  Butcher  219,  nor 
any  other  reported  case  which  has  been  referred  to,  sustain 
the  doctrine  contended  for. 


OCTOBER  TERM,  1863.  527 

Vreeland  v.  Vreeland's  Adm'r. 

The  decree  of  the  court  below  can  derive  no  support  from 
the  provisions  of  tlie  act  of  March  12th,  1851,  for  the  relief 
of  widows  in  certain  eases.  Nix.  Dig.  282,  §  35.  That  act, 
by  its  terms,  extends  only  to  the  specific  chattel,  chose  in 
action,  or  other  personal  property,  which  belonged  to  the  wifo 
at  her  marriage,  or  which  subsequently  came  to  her,  and 
which  remained  in  the  hands  of  the  luisi)and  unchanged,  at 
his  death.  Had  the  bond  given  to  the  wife  during  her  cov- 
erture remained  in  the  hands  of  the  husband  until  his  death, 
the  case  woulil  have  fallen  within  the  operation  of  that 
Ptatute.  But  the  bond  having  been  collected  by  the  husband, 
and  the  funds,  in  whole  or  in  part,  invested  in  his  own  name, 
it  is  clear  that  the  widow  cannot  claim  the  protection  of  the 
act.  The  act  of  1851  eifected  no  change  in  the  rights  of  the 
widow  to  her  choses  in  action,  acquired  before,  or  during  her 
coverture,  and  remaining  in- the  hands  of  the  husband  at  the 
time  of  his  death.  But,  in  terms,  it  transfers  the  title  to  the 
wife's  chattels  in  possession  of  the  husband,  from  the  estate 
of  the  husband  to  the  wife,  saving  the  rights  of  the  husband's 
creditors. 

It  is  further  urged  that  this  claim  is  disputed,  and  there- 
fore, is  not  the  proper  subject  of  adjudication  in  the  Ori)hans 
Court;  that  the  exception  should  have  been  allowed,  and  the 
widow  compelled  to  resort  to  the  ordinary  tribunals  of  law  or 
equity  for  the  recovery  of  her  claim.  Our  statute  has  con- 
ferred no  authority  upon  the  Orphans  Court  to  try  disputed 
claims,  except  in  the  case  of  insolvent  estates.  In  such  case, 
either  the  executor  or  administrator,  or  any  person  interested, 
may  file  exceptions  against  the  claim  of  any  creditor,  and  the 
court  are  to  hear  the  i)roofs,  and  decree  and  determine  in  re- 
gard to  the  validity  of  the  claims.  In  all  other  cases  it  is  a 
settled  principle,  that  the  Orphans  Court  is  not  the  proper 
trll)unal  for  the  trial  of  disputed  claims.  But  by  a  disputed 
claim  here,  is  meant  a  claim  which  is  disputed  by  the  execu- 
tor or  administrator,  not  a  claim  which  the  legatee  or  next  of 
kin  may  deem  unfounded  or  unjust. 

If  the  executor  or  administrator  disputes  the  claim,  or  re- 


528  PREROGATIVE  COURT. 

Vreeland  v.  Vreeland's  Adm'r. 

fuses  to  pay  it,  the  Orphans  Court  cannot  allow  it,  or  compel 
the  executor  or  adoainistrator  to  include  it  in  his  account. 
To  justify  the  Orphans  Court  in  allowing  a  claim  against  an 
estate,  it  must  appear  that  the  executor  or  administrator  as- 
sented to,  or  recognized  it  as  a  debt  due  from  the  estate. 
Wilson  V.  Baptist  Ed.  Soc,  10  Barb.  320  ;  A7idreu-s  v.  Wal- 
lace, 29  Barb.  350 ;  Disosway  v.  Bank  of  Washington,  24 
Barb.  60. 

But  if"  the  executor  or  administrator  admit  the  claim  and 
pray  allowance  for  it  in  his  account,  it  is  not  a  disputed  claim 
within  the  meaning  of  the  rule,  and  falls  properly  within  the 
jurisdiction  of  the  Orphans  Court.  The  administrator  is  the 
legal  representative  of  the  estate,  and  as  a  general  rule,  he 
may,  at  his  discretion,  and  without  the  assent  of  those  inter- 
ested in  the  estate,  pay  or  compromise  any  claim  against  it, 
even  though  barred  by  the  statute  of  limitations.  Claims 
against  the  estate  paid  by  the  executor  or  administrator,  con- 
stitute properly  a  part  of  his  account.  If  the  claims  are  ille- 
gal or  unfounded,  the  charges  in  the  account  are  open  to  ex- 
ception, and  thus  the  question  is  brought  within  the  jurisdic- 
tion of  the  Orphans  Court. 

It  is  further  insisted  that  the  claim  was  not  in  fact  paid, 
and  that  it  was  not  a  proper  charge  against  the  estate  by  the 
administrator,  until  it  was  paid  by  him.  The  mere  fact  that 
a  debt  or  legacy  has  not  been  actually  paid,  constitutes  no 
objection  to  its  allowance  upon  the  settlement  of  the  account, 
if  its  existence  is  clearly  established.  Accounts  are  thus 
frequently  settled,  where  the  legatee  or  creditor  is  absent, 
or  not  in  a  situation  to  receive  payment.  By  the  settlement, 
the  executor  or  administrator  becomes  liable  for  the  amount 
thus  allowed.  No  prejudice  is  occasioned  to  those  interested 
in  the  estate.  But  it  is  urged  that  the  administrator  is,  or 
may  be,  unwilling  to  assume  the  responsibility  of  paying  the 
claim,  but  by  collusion  with  the  claimant,  claims  allowance 
for  the  debt,  in  order  thus  to  withdraw  the  cognizance  of  the 
question  from  the  ordinary  tribunals  of  law  or  equity.  There 
is,  to  my  mind,  much  force  in  the  objection.     And  had  this 


OCTOBER  TERM,  1863.  529 

Vreeland  v.  Vreeland's  Adm'r. 

exception  been  taken  in  the  court  below,  before  evidence  bad 
been  heard  ujion  the  merits,  and  Iiad  the  court  been  called 
upon,  then,  to  strike  the  item  from  the  account,  upon  tiie 
ground  now  urged  for  reversal,  I  think  the  objection  should 
have  been  sustained,  and  if  overruled,  it  would  have  pre- 
sented a  just  giound  for  reversal  upon  appeal.  But  it  does 
not  appear  that  this  was  made  a  ground  of  objection  before 
the  Orphans  Court,  either  before  the  evidence  was  taken  and 
the  hearing  had  upon  the  merits,  or  at  any  stage  of  the  pro- 
ceedings. It  was,  in  fact,  not  made  the  ground  of  exception 
in  that  court,  although  it  appears  upon  the  face  of  the  ac- 
count, that  no  voucher  had  been  taken  for  the  payment  of 
the  money,  and  the  form  of  the  claim  shows  that  the  money 
had  not  been  paid.  Nor  is  this  objection  made  the  ground 
of  appeal  in  this  court.  The  specific  ground  of  appeal  is 
that  "  the  item  of  $2000,  claimed  by  the  administrator  as 
due  to  So[)hia  Vreeland,  and  allowed  by  said  decree,  is  un- 
just and  illegal,  the  said  Sophia  having  no  just  or  legal  claim 
to  the  same."  It  would  seem,  from  the  proceedings  in  the 
court  below,  that  the  parties  voluntarily  submitted  the  ques- 
tion upon  the  merits  to  the  decision  of  the  Orphans  Court, 
ft)r  the  pur{)oso  of  having  it  decided  in  the  most  easy  and 
expeditious  mode.  Under  these  circumstances,  I  do  not 
think  that  it  lies  in  the  mouth  of  the  a[)pellant  now  to  com- 
plain, that  he  is  deprived  of  a  hearing  before  the  ordinary 
tribunals  of  justice,  or  before  the  Court  of  Appeals  in  the 
last  resort. 

And  as  the  claim  has  manifestly  been  made  in  good  faith 
on  the  part  of  the  widow,  as  there  is  no  reason  for  suspect- 
ing the  existence  of  collusion,  or  a  want  of  good  faith  on  tiie 
part  of  the  administrator,  as  there  has  been  a  full  and  fair 
liearing  and  decision  u[)on  the  merits,  I  do  not  feel  justified 
in  now  turning  the  parties  around,  and  permitting  the  appel- 
lants to  try  the  experinjent  of  obtaining  a  different  decision 
in  another  tribunal. 

Exceptions  were  also  taken  to  two  small  items  of  the  ac- 
count, being  respectively  for  ^11.81  and   $55.08,  for   which 


530  PREROGATIVE  COURT. 

Vreeland  v.  Vreeland's  Adm'r. 

the  administrator  prayed  allowance  as  ''desperate."  The 
exceptions  were  disallowed  in  the  court  helow.  And  this  con- 
stitutes another  ground  of  appeal  from  the  decree.  The 
items  consisted  of  two  vendue  accounts  for  goods,  which  were 
included  in  the  inventoiy,  and  which  were  sold  by  the  ad- 
ministrator upon  credit,  without  security.  The  purchaser 
of  the  smaller  bill  was  known  at  the  time  to  be  irresponsible, 
but  the  goods  were  taken  away  by  him  without  permission. 
The  other  purchaser  was  regarded  as  solvent.  He  gave  his 
note  for  the  amount  of  his  purchase,  without  security,  pay- 
able on  dt'n)and  to  the  administrator,  in  his  individual   name. 

It  is  a  fundamental  principle,  that  the  administrator  is  ac- 
countable for  all  proj)crty  of  the  deceased  which  came  to  his 
hands  to  be  administered.  He  cannot  be  relieved  from  this 
accountability  on  the  ground  of  loss,  where  the  loss  was  oc- 
casioned by  any  default  of  his  own. 

It  is  a  well  settled  rule,  both  in  England  and  in  this  state, 
that  if  executors,  administrators,  or  other  trustees,  loan 
money  without  due  security,  they  are  liable  in  case  of  loss. 
Loans  made  on  private  or  j)ersonal  security,  are  at  the  risk 
of  the  trustees,  who  are  personally  answerable  if  the  security 
prove  defective.  To  afford  complete  indemnity  to  the  trus- 
tee against  the  hazard  of  responsibility  for  loss,  the  invest- 
ment must  be  made  in  government  sto(!ks,  or  upon  adequate 
real  security.  Oray  v.  Fox,  Saxton  259;  2  Williams  on 
Ex'rs  1539,  1541. 

Sales  by  executors  and  administrators,  both  of  real  and 
personal  estate,  are  regularly  made  for  cash,  without  credit  ; 
or  by  sanction,  and  under  the  direction,  of  some  judicial  tri- 
bunal, prescribing  the  extent  of  the  credit  and  the  natiu'e  of 
the  security. 

In  some  of  the  states  of  the  Union,  personal  ])roperty  is 
thus  sold  by  direction  of  the  Ordinary,  and  usually  upon 
personal  security. 

In  this  state  a  practice  has  long  prevailed,  of  permitting 
an  executor  or  administrator  to  sell  personal  property,  either 
for  cash  or  upon  short  credits,  with  approved  personal  secu- 


OCTOBER  TERM,  1863.  531 

Vreeland  v.  Vreeland's  Adm'r. 

rity,  at  his  discretion..  The  custom  of  selling  upon  short 
credits,  and  upon  personal  security,  without  direct  judicial 
authority,  has  been  sanctioned  by  long  and  general  usage. 
In  practice,  it  is  advantageous  to  the  interests  of  the  estate, 
Higlier  prices  are  obtained,  and  usually  without  loss.  Cash 
sdles  will,  in  most  cases,  necessarily  be  made  at  lower  rates. 
Where  sales  are  thus  made,  and  security  taken  with  due 
caution,  the  executor  or  administrator  is  chargeable  with  no 
default,  and  is  not  liable  in  case  of  loss.  But  in  this  case, 
the  administrator  made  the  sales  in  question  upon  the  per- 
sonal liability  of  the  purchasers,  without  security  of  any  kind. 
In  the  one  case  no  note  was  taken  ;  in  the  other,  the  indi- 
vidual note  of  the  purchaser.  One  of  the  purchasers  was 
known  to  the  administrator  to  be  unworthy  of  credit;  the 
other,  from  whom  the  note  was  taken,  was  supposed  to  be  re- 
sponsible. The  conduct  of  the  administrator  in  both  cases  was 
entirely  indefensible.  I  know  of  no  practice  to  countenance  it, 
and  no  principle  upon  which  such  practice  can  be  justified. 
On  the  contrary,  I  believe  the  principle  to  be  of  universal  aj)- 
])lication,  admitting  of  no  exception  or  qualification,  that  an 
executor  or  administrator  cannot  sell  and  part  with  the  pos- 
Bession  of  assets  which  have  come  to  his  hands  to  be  admin- 
istered, without  requiring  security  for  the  price.  If  he  sell 
under  judicial  sanction,  he  must  pursue  strictly  the  order  of 
the  court.  If  he  sell  upon  credit,  without  judicial  sanction, 
and  upon  his  own  discretion,  he  must  use  due  caution  in  ob- 
taining adequate  security.  If  he  do  otherwise,  he  acts  at 
his  peril  ;  and  if  a  loss  is  sustained  by  the  insolvency  of  the 
purchaser,  he  is  giuilty  of  a  devastavit. 

I  am  not  aware  of  any  judicial  decision  upon  the  point  in 
this  state,  but  I  regard  the  j)rinciple  as  unquestionable,  and 
it  is  sustained  by  abundant  authority  in  other  states. 

In  Kinff  v.  King's-  Adin'rs,  3  Johns.  Ch.  R.  552,  the  ad- 
ministrators sold  the  leasehold  estate  of  the  intestate  on 
credit,  and  took  a  ])roraissory  note  of  the  purchaser,  without 
Becurity.  The  jiurchascr  paid  part  of  the  purchase  money, 
but  became  insolvent  before  the  residue  could  be  collected. 


532  PREROGATIVE  COURT. 

Vreeland  v.  Vreeland's  Adni'r. 

The  administrators  were  held  responsible  for  the  loss.  The 
Chancellor  (Kent)  directed  that  they  should  be  charged  with 
the  whole  amount  of  the  purchase  money,  lujlding  them  guilty 
of  negligence  in  parting  with  the  leasehold  estate  without 
payment  or  security.  The  principle  is  sustaiticd  by  numerous 
authorities.  Orcutt  v.  Orms,  3  Paige  459  ;  Slukes  v.  Collii'is, 
4  Dcsaus.  207;  Masse;/  v.  Cureton,  Chcves  181;  O'Dell  v. 
Young,  1  Mc3Ia/lan's  Eq.  155  ;  Dillebauglis  Estate,  4  Watts 
177  ;  Jolinstoii's  Estate,  9   Watts  &  Serg.  108. 

J  have  dwelt  thus  long  upon  this  point,  which  seems  too 
clear  to  admit  of  doubt  or  to  require  discussion,  because  the 
administrator  was  not  charged  with  this  loss  by  the  respected 
tribunal  by  whom  this  cause  was  originally  decided.  I  have 
looked  with  some  solicitude,  to  discover  the  ground  upon 
which  that  decision  could  have  l)een  based.  It  may  have 
been,  because  they  believed  tiiat  the  administrator  acted  ia 
good  faith.  I  entertain  no  doubt  that  he  tlid  act  in  entire 
good  faith,  but  if  the  mone^'  was  lost  by  his  default,  the 
purity  of  his  motives  cannot  relieve  him  from  his  obligation 
to  make  good  the  loss.  Or,  ihe  court  may  have  decided, 
upon  the  pVinciple  that  the  executor  was  bound  only  to  use 
ordinary  caution  in  the  management  of  the  estate.  That 
principle  is  admitted.  An  executor  or  administrator  is 
bound  to  use  the  same  caution  and  circumspection,  that  a 
prudent  man  would  use  in  the  conduct  of  his  own  concerns. 
But  no  prudent  man,  influenced  by  the  ordinary  motives  of 
self  interest,  and  acting  with  due  caution,  will  let  out  his 
money  or  sell  ])roperty  on  credit,  without  a  responsible 
security  for  its  payment.  But  the  more  decisive  answer  to 
the  suggestion  is,  that  in  parting  with  the  assets  of  the  estate 
to  a  purchaser  without  security,  the  administrator  was  vio- 
lating his  duty,  and  was  guilty  of  a  default.  The  law  allows 
no  exercise  of  discretion  uj)on  that  point.  He  is  bound  to 
require  security.  In  deciding  what  security  lie  will  accept, 
he  acts  at  his  discretion.  He  is  bound  to  use  ordinary  cau- 
tion only,  and  if  the  security  ])rove  inadequate,  the  adminis- 
trator, acting  in  good  faith,  is  not  responsible.  The  case  is 
not  altered  by  the  fact  that  the  goods  were  removed  \>y  one 


OCTOBER  TERM,  18G3.  533 

Culver  V.  Brown, 

of  the  purchasers,  without  the  knowledge  or  consent  of  the 
administrator.  He  took  no  step  to  obtain  security,  or  compel 
a  restoration  of  the  goods. 

The  a(hninistrator  is  responsible  for  the  loss  sustained  by 
the  neglect  to  require  security.  Both  claims  should  have  been 
disallowed,  and  the  decree  and  account  must  be  corrected  ac- 
cordingly.    In  all  other  respects  the  decree  is  affirmed. 

The  main  question  involved  in  the  cause  was  novel  and 
]>roper  to  be  heard  before  this  court.  Costs  will  be  allowed 
to  neither  party  as  against  the  other. 

Cited  in  Horner  v.  Webster,  4  Vr.  399-404-410-414 ;  Echcrt  v.  Beuler, 
Id.  268. 


John  Culver,  appellant,  and  James  Brown,  respondent. 

1.  The  design  of  the  act  of  1850,  {Nix.  Dig.  590,  |  3,)  supplementary  to 
tlie  Orphans  Court  act,  was,  tiiat  notice  should  be  given  to  the  ward,  of  an 
intended  settlement  by  his  guardian.  No  notice  to,  or  appearance  by  the 
guardian,  can  be  a  waiver  of  the  notice  prescribed  by  the  act. 

2.  Fifteen  per  cent,  commissions  having  been  allowed  by  the  Orphans 
Court,  the  law  authorizing  but  seven  per  cent.,  decree  must  be  corrected. 


This  case  came  before  the  Ordinary  on  appeal  from  a  decree 
of  the  Orphans  Court  of  the  county  of  Middlesex. 

Schenck,  for  appellant. 

Leupp,  for  respondent. 

The  Ordinary.  The  appellant  having  settled  his  final 
account  as  guardian  of  the  respondent,  before  the  Orphans 
Court  of  the  county  of  Middlesex,  the  court,  by  a  subsequent 
order,  opened  tjie  account  and  decree  thereon,  and  permitted 
the  ward  to  file  exceptions  to  the  account.  From  this  latter 
decree  the  guardian  has  appealed. 

Culver  was  appointed  guardian  of  the  respondent  on  the 


634  PHEROGATIVE  COURT. 

Culver  V.  Brown. 

20th  of  March,  1844,  the  ward  then  being  under  seven  years 
of  age.  When  his  office  was  determined,  does  not  appear. 
His  last  disbursement  for  the  ward  was  under  date  of  the 
16th  of  June,  1852.  On  the  18th  of  January,  1856,  he  de- 
livered over  to  David  Yates,  the  newly  aj>pointed  guardian, 
fifty  dollars  as  funds  belonging  to  the  ward.  At  the  term  of 
December,  1857,  he  exhibited  his  final  account  as  guardian, 
for  settlement  and  allowance,  no  previous  settlement  having 
been  made.  On  the  12Lh  of  January,  1858,  a  decree  was 
made  for  the  settlement  and  allowance  of  the  account.  On 
the  29th  of  the  same  month  of  January,  on  the  application 
of  the  ward,  a  rule  was  granted  to  show  cause  why  the  de- 
cree should  not  be  set  aside,  and  the  account  opened.  Evi- 
dence having  been  taken,  the  ride  was  made  absolute  on  the 
12lh  of  March  following.  The  decree  opening  the  account, 
appears,  by  its  recital,  to  have  been  made  for  errors,  irregu- 
larities, and  mistakes  made  manifest. 

It  is  insisted  by  the  appellant  that  the  decree  was  erro- 
neous, because  there  is  no  evidence,  either  of  fraud  or  mistake, 
and  that,  by  the  terms  of  the  statute,  the  decree  upon  the  final 
settlement  and  allowance  of  the  account,  is  conclusive  upon 
all  parties.     NLv.  Dig.  581,  §  27. 

I  incline  to  think  that  the  decree  for  the  settlement  and 
allowance  of  the  guardian's  account  was  a  nullity.  It  does 
not  appear  by  the  evidence  that  the  settlement  of  the  account 
was  adveitised,  or  that  any  notice  thereof  was  given  to  the 
ward,  nor  can  it  be  gathered  from  the  proceedings  in  the  Or- 
phans Court,  that  any  such  advertisement  or  notice  was  given. 
On  the  contrary  the  decree  itself,  as  if  by  way  of  substitute 
for  the  legal  notice,  states  that  Brown,  the  minor,  appeared 
by  his  guardian,  David  Yates.  Yates,  on  his  examination, 
testifies  that  one,  two,  or  three  days  before  the  term,  Culver 
spoke  to  him  about  the  settlement  of  his  account.  He  adds  : 
''  I  told  him  I  would  be  there,  and  that  it  would  not  be  ne- 
cessary for  him  to  serve  a  notice  on  me.  That  he  could  settle 
with  the  court,  and  I  would  examine  it  afterwards.     I  don't 


OCTOBER  TERM,  1863.  535 

Culver  V.  Erown. 

know  anything  about  the  account,  whetlier  it  is  correct  or 
otherwise.     I  never  saw  it." 

Tlie  act  of  1855,  {Nix.  Dig.,  1st  ed.,  562,  §  8,)  requires  that 
in  addition  to  the  notice  then  required  by  law,  the  guardian 
shouh]  give  to  all  the  wards  interested  in  the  account  to  be 
settled,  thirty  days  notice  of  his  intention  to  settle  his  ac- 
count. 

The  act  of  1856,  {Nix.  Dig.  590,  §  3,)  repeals  the  eighth 
section  of  the  act  of  1855,  and  declares  that  no  account  of 
any  guardian  shall  be  audited  or  allowed,  unless  the  guardian 
shall  give  at  least  two  months  notice  of  such  settlement  by 
advertisement,  as  j)rescribed  in  the  act.  It  was  ex[)ressly 
required  by  the  act  of  1855,  that  notice  should  be  given  to 
the  ward,  and  such  was  the  manifest  design  of  the  act  of 
1856.  No  notice  to,  pr  appearance  by  the  guardian,  can 
be  a  waiver  of  the  notice  prescribed  by  the  act  of  1856.  The 
court  appear  to  have  proceeded  on  the  erroneous  assumption, 
that  the  appearance  by  the  newly  appointed  guardian  was  a 
waiver  of,  or  a  substitute  for,  the  notice  required  by  the 
statute. 

But  aside  from  this  objec-tion,  the  court  were  justified  in 
opening  the  account  and  admitting  exceptions  to  be  filed, 
both  on  the  ground  of  fraud  and  mistake.  The  guardian 
was  appointed  in  1844.  In  1850,  he  had  sold  the  real  estate 
of  the  ward.  In  1852,  he  had  made  the  last  disbursement 
for  his  ward.  In  1853,  the  ward  was  in  his  employ,  earning 
wages.  In  1856,  the  guardian,  having  been  discharged  from 
office,  turned  over  fifty  dollars  of  the  ward's  funds  to  his 
newly  appointed  guardian,  as  a  balance  that  was  coming  to 
hira.  In  1858,  a  few  months  before  the  ward  came  of  age, 
the  guardian,  without  notice  to  the  ward,  or  an  ojiportunity 
on  his  part  to  be  heard,  settled  his  account,  showing  a  balance 
in  his  own  favor.  Notice  was  indeed  given,  two  or  three 
days  before  the  court,  to  the  newly  appointed  guardian,  of  an 
intention  to  settle  the  account,  but  he  had  no  knowledge  of 
its  character  or  contents,  and  in  waiving  notice  to  himself, 
and  consenting  to  the  settlement,  it  was  upon  the  manifest 


536  PREROGATIVE  COURT. 

Culver  V.  Brown. 

understanding  on  his  part,  that  any  error  could  be  subse- 
quently corrected.  An  application  was  made  within  a  few 
days,  to  open  the  account  and  correct  errors,  but  the  ac- 
countant insisted  that  the  settlement  was  conclusive  against 
Ills  ward.  Under  these  circumstances,  the  court  were  justi- 
fied in  holding  the  settlement  fraudulent  as  against  the  minor. 
It  may  be  added,  that  there  is  at  least  one  manifest  mis- 
take in  the  account  as  settled.  As  the  law  stood  at  the  set- 
tlement of  this  account  in  1858,  and  as  it  now  stands,  the 
commissions  allowed  to  a  guardian,  cannot  exceed  seven  per 
cent,  on  sums  not  exceeding  one  thousand  dollars,  received 
and  j)aid  out.  The  commissions  allowed  the  guardian  iu 
this  case,  amounted  to  nearly  fifteen  per  cent,  on  the  sum  re- 
ceived and  paid  out.  Thi,s,  it  is  true,  would  not  be  a  ground 
for  opening  the  entire  account,  but  it  shows  the  necessity  of 
its  correction^  and  the  proj)riety  of  requiring  that  the  ward 
should  hav^e  an  opportunity  of  being  present  at  the  settle- 
ment, and  protecting  his  rights. 

The  decree  is  affirmed  with  costs. 


C^SES 


ADJUDGED  IN  THE 


COURT  OF  ERRORS  AND  APPEALS 

OF  THE 

STATE  OF  NEW  JEESEY, 
ON  APPEAL  FROM  THE  COURT  OF  CHANCERY 

JUNE  TERM,  1863. 


JosiAH  F.  MuiR,  appellant,  and   The  Newark  Savings 
Institution  and  others,  respondents. 

1.  If  an  agent,  in  making  a  loan  of  money,  accept  from  the  borrower  a 
bonus  beyond  the  legal  rate  of  interest,  such  act  of  the  agent  will  not  render 
the  contract  usurious,  if  the  bonus  was  taken  without  the  knowledge  of  the 
principal,  and  was  not  received  by  him. 

2.  The  reservation  of  interest  for  money  actually  on  hand  and  suliject  to 
the  call  of  the  borrower,  during  the  time  he  is  engaged  in  completing  his 
securities,  is  not  usurious. 

3.  The  essence  of  the  offence  of  usury  is  a  corrupt  agreement  to  contra- 
vene the  law.  Any  contrivance  to  evade  tlie  statute,  and  to  enable  the 
lender  to  receive  more  than  legal  interest  for  his  money,  renders  tlie  con- 
tract a  corrupt  one.  And  the  law  will  infer  the  corrupt  agreement,  when 
it  appears  by  the  face  of  the  papers  or  otherwise,  that  illegal  interest  was 
intentionally  reserved,  although  the  illegality  arose  from  a  mistaken  con- 
etruction  of  the  law. 

537 


538       COURT  OF  ERRORS  AND  APPEALS. 

Muir  V.  Newark  Savings  Institution. 

This  was  an  appeal  from  a  decree  of  the  Chancellor.  The 
appeal  was  argued  by 

ZabrisJde,  for  a{)peUaDt. 

Hubbell,  A.  3Iills,  and  C.  Parker,  for  respondents. 

The  opinion  of  the  court  was  delivered  by 

Elmer,  J,  The  bill  filed  by  the  Newark  Savings  Insti- 
tution, is  (he  common  bill  for  the  foreclosure  and  sale  of 
certain  mortgaged  premises,  to  pay  the  balance  claimed  to 
be  due  from  tlie  appeUant  on  his  bond  and  mortgage,  bearing 
date  July  1st,  1850.  To  this  bill  the  executor  of  Abraham 
Brittin,  deceased,  was  made  defendant,  so  that  the  amount 
due  on  a  bond  and  mortgage  given  by  the  appellant  to  the 
said  Brittin  for  $3000,  dated  February  10th,  1S59,  might 
be  included  in  the  decree.  The  executor  answered,  and 
prayed  to  iiave  a  decree  for  the  sale  of  tlie  property,  and  the 
payment  of  the  principal  and  interest  due  on  the  mortgage. 
The  appelhmt,  in  his  answer,  set  up  the  defence  of  usury  as 
against  both  debts. 

As  to  the  bond  and  mortgage  to  the  Savings  Institution, 
the  usury  is  alleged  to  have  arisen  in  two  ways.  First,  he 
says  that  it  was  agreed  between  liim  and  William  B.  Mott, 
acting  for  and  on  behalf  of  the  complainants,  tiiat  they  would 
loan  to  said  defendant  tlie  sum  of  five  thousand  dollars, 
upon  condition  that  defendant  v/ould  j^ay  therefor  the  sum 
of  one  hundred  dollars,  which  lie  avows  he  did  j)ay  to  said 
Mott,  at  or  about  the  tisne  of  the  delivery  of  said  bond  and 
mortgage.  And  secondly,  he  says,  that  the  said  bond  and 
mortgage  bear  interest  from,  and  are  dated  July  1st,  but  that 
the  money  was  not  actually  paid  over  by  complainants,  or 
received  by  defendant,  until  the  ninth  of  said  month. 

We  are  not  satisfied  that  the  first  ground  of  usury  thus 
set  up,  is  proved  to  be  true.  The  defendant  himself  swears 
to  the  facts  ;  but  although  the  statute  has  made  him  a  com- 
petent witness,  his  credibilty  is  open  to  question,  and  we  do 


JUNE  TERM,  1863.  539 

Miiir  V.  Newark  Savings  Institution. 

not  feel  justified  in  deciding  tliat  a  debt,  secured  by  a  bond 
and  mortgage  shall  be  discharged  by  the  uncoiToboratcci 
oath  of  the  [>arty  who  has  made  and  is  bound  by  them.  lis 
this  case,  it  appears  that  he  has  j)aid  the  interest  for  many 
years,  and  a  pait  of  the  principal,  and  made  no  complaint 
of  usury  during  the  lifetime  of  Mott,  who  alone  coidd  con- 
tradict iiim.  But  if  he  did  j)ay  a  bonus  of  one  hundred 
dollars  to  Mott  to  obtain  this  loan,  as  he  alleges,  there  is 
not  only  no  evidence  that  ho  had  any  authority  from  the 
institution  to  receive  it,  or  that  the  other  members  of  the 
funding  committee,  by  whose  concurrence  the  loan  was  made, 
had  any  knowledge  of  the  transaction  ;  but  it  is  proved  that 
they  were  ignorant  of  it,  and  that  no  part  of  the  money 
went  into  the  funds  of  the  complainants.  This  ground  of 
usury,  therefore,  entirely  fails. 

It  appears,  as  to  the  second  ground,  that  the  money  was 
not  in  fact  |)aid  over  to  the  defendant  until  the  tenth  of  July, 
and  that  Mott,  who  was  treasurer,  and  as  such  one  of  the 
funding  committee,  made  an  entry  in  the  books  of  the  insti- 
tution, as  follows  :  "  1850,  July  3d,  bond  and  mortgage  ac- 
count, Dr.  to  cash  for  Josiah  F.  Muir's  bond  and  mortsage 
on  property  at  Chatham,  N.  J.,  $5000." 

It  is  insisted  for  the  appellant,  that  it  thus  appears  the 
bond  and  mortgage  were  made  to  bear  interest  several  days 
before  the  h)an  was  made,  and  that  this  was  such  an  inten- 
tional violation  of  the  law,  as  to  amount,  whatever  may  have 
been  the  motive  of  the  j)arties,  to  a  corrupt  agreement,  and 
was  therefore  usurious.  The  essence  of  the  offence  of  usury 
is  a  corrupt  agreement  to  contravene  the  law.  Any  contri- 
vance to  evade  the  statute,  and  to  enable  the  lender  to  receive 
more  than  legal  interest  for  his  money,  undoubtedly  renders 
the  contract  a  corrupt  one.  And  there  is  no  (hjiibt  that  the 
law  will  infer  this  corru[)t  agreement,  when  it  appears  by  the 
face  of  the  papers  or  otherwise,  that  illegal  interest  was  in- 
tentionally reserved,  although  tiie  illegality  arose  from  a  mis- 
taken construction  of  the  law.  So  it  \vas  held  in  the  cases 
to  which  we  were  referred.     JIarsh  v.  Martindah,  3  Bosan. 


£10       COURT  OF  ERRORS  AND  APPEALS. 

Muir  V.  Newark  Savings  Institution. 

&  Pull.  154  ;  Bank  of  Ut'ica  v.  Wager,  2  Coio.  712,  and  other 
New  York  cases  of  a  like  nature;  Bank  of  Maine,  v.  Butts, 
9  3fass.  49  ;  Williams  v.  Williams,  3  Green's  E.  255. 

But  in  the  case  before  us  there  was  no  contrivance  to  evade 
the  statute,  nor  was  illegal  interest  intentionally  reserved. 
The  appllant's  own  statement  is,  that  he  entered  into  an 
agreement  with  the  funding  committee  to  take  the  money, 
and  that  they  had  it  on  hand  subject  to  his  disposal,  before 
the  first  of  July,  and  that  the  delay  occurred  in  having  the 
security  prepared  and  executed.  The  entry  in  the  books  of 
the  institution,  of  the  loan  on  the  third  of  July,  cannot  be 
regarded  as  conclusive  proof  that  the  agreement  was  not  en- 
tered into  at  an  earlier  date.  As  the  case  is  presented,  we 
think  we  are  fidly  justified  in  considering  that  it  was  ;  it 
being  apparent  that  there  was  no  design  on  the  ])art  of  either 
lender  or  borrower,  to  take  or  to  allow  illegal  interest.  No 
case  has  been  produced,  which  has  held  it  to  be  illegal  to  re- 
serve or  take  interest  for  money  actually  on  hand  and  subject 
to  the  call  of  the  borrower,  during  tiie  time  he  is  engaged  in 
completing  his  securities.  In  the  case  of  Kcyes  v.  Moultrie 
&  Palmer,  3  Basic.  1,  the  Superior  Court  of  New  York  de- 
cided, we  think  correctly,  that  a  contract  of  this  character  is 
not  usurious.  We  are,  therefore,  of  oj)inion  that  the  decree 
of  the  Chancellor,  ordering  an  account  to  be  taken  of  the 
amount  due  on  the  complainant's  bond  and  mortgage,  is  cor- 
rect, and  must  be  affirmed. 

As  to  the  Brittin  mortgage,  the  allegation  is  that  it  was 
given  to  secure  a  loan  of  three  thousand  dollars,  and  that 
said  loan  was  made  upon  express  conditi(»n  that  tlie  appellant 
should  take,  as  a  part  thereof,  a  horse  at  the  price  of  live  hun- 
dred dollars,  and  that  said  horse  was  not  worth  more  than  two 
hundred  and  sixty  dollars.  If  these  allegations  were  ])roved, 
the  defence  would  be  complete.  But  we  are  not  satisfied  that 
they  are.  This  defence,  like  that  in  the  case  of  the  Savings 
Institution,  is  set  up  after  the  death  of  the  party  with  whom 
the  contract  was  made.  The  evidence  relied  on  consists  of 
the  appellant's  own  statements,  not   made  on  oath,  and  some 


JUNE  TERM,  18G3.  541 

Muir  V.  Newark  Savings  Institution. 

of  which  were  clearly  incnmjietent.  There  is  no  satisfactory 
evidence  of  the  material  allegation  that  the  taking  of  the 
horse  at  the  price  named  was  a  condition  of  the  appellant's 
obtaining  a  loan.  It  appears  that  he  signed  a  receipt,  that 
he  had  received  Brittin's  chock  for  $2000,  three  notes  of  other 
parties  amounting  to  $540.02,  and  a  four  year  old  stud  colt, 
$500,  for  whicli  he  had  given  his  bond  and  mortgage  for 
$3000,  and  his  note  for  $40.02  ;  but  this  receipt  does  not 
show  that  the  takitig  of  the  notes  and  the  horse  was  not  at  his 
own  request.  It  was  insisted  that  the  situation  of  tlie  aj)pel- 
lant  was  such  that  we  ought  to  infer  that  he  could  not  have 
desired  to  j>urchase  such  a  horse.  Such  an  inference,  we 
think,  would  be  very  unsafe,  and  would  amount  to  the  sub- 
stitution of  conjecture  for  proof.  Nor  is  the  evidence  that 
the  horse  was  not  worth  the  money  agreed  to  be  paid  for  him, 
at  all  conclusive.  Several  witnesses,  it  is  true,  rated  him  at 
from  $125  to  $200  ;  but  the  little  reliance  that  can  be  placed 
on  such  estimates  is  shown  by  the  fact,  that  although  the 
horse  was  stolen  shortly  after  the  ])urchase,  and  considerably 
injured,  he  was  actually  sold  for  $260.  He  was  certainly  a 
horse  of  rather  remarkable  beauty,  and  several  good  judges 
testify  that  he  was  worth  $500.  The  ai>pellant  himself 
stated,  at  the  time  he  was  stolen,  that  he  was  a  valuable  horse, 
worth  $500  or  $G00.  We  think  the  Chancellor's  order  that 
an  account  be  taken  of  the  amounts  due  on  this  bond  and 
mortgage  was  correct,  and  that  the  whole  decree  must  be 
affirmed. 

The  decree  of  the  Chancellor  was  affirmed  by  the  following 

vote  : 

jPo?'  affirmance — Judges  Brown,  Combs,  Cornelison-, 
Elmer,  Fort,  Haines,  Kennedy,  Ogden,  Vreden- 
BURGH,  Wales,  Wood — 11. 

For  reversal — None. 

CiTKT)  in  Washington  L.  Ins.  Co.  v.  Paterson  Silk  Mfg.  Co.,  10  C.  E.  Or 
163. 

Vol.  I.  2  L 


542      COURT  OF  ERRORS  AND  APPEALS. 


Norris  v.  Ex'rs  of  Thomson. 


NOVEMBER   TERM,   1863. 

Caroline  Norris,  Adeline  Thomson,  and  others,  appel- 
lants, and  The  Executors  of  John  R.  Thomson  and 
others,  respondents.* 

1.  To  constitute  a  legacy  specific,  it  is  necessary  that  such  intention  be 
either  expressed  by  the  testator  in  reference  to  tlie  thing  bequeathed,  or 
otherwise  clearly  appear  from  the  will. 

2.  Tliis  is  not  a  technical  arbitrary  rule  to  be  answered  only  by  the  use 
of  particular  words  and  expressions,  but  is  an  embodiment  of  the  general 
principles  by  which  the  character  of  legacies  should  be  tested  and  deter- 
mined, each  will  resting  for  correct  construction  upon  the  language  em- 
ployed, and  upon  established  surrounding  significant  circumstances,  if  such 
exist. 

3.  The  language  used  by  the  testator  in  creating  and  directing  the  trusts 
in  the  will,  has  a  clear  reference  to  tlie  stocks  and  particular  bonds  which 
the  testator  possessed  when  he  executed  the  will,  and  shows  tliat  the  testa- 
tor intended  that  the  legacies  should  be  discharged  by  his  trustees  handing 
over  to  the  respective  legatees,  stock  and  bonds  which  they  would  find  in 
his  strong  box  after  his  death.     Per  Ogden",  J. 

4.  If  the  language  of  the  will  does  not  come  up  to  the  rule  laid  down  in 
the  books,  the  circumstances  by  which  the  testator  was  surrounded  when 
the  will  was  drawn,  and  the  whole  scope  and  texture  of  the  instrument 
taken  in  connection  with  the  particular  clauses  of  bequest,  clearly  indicate 
an  intention  to  create  a  specific  legacy. 

*  Note.  This  case-  has  been  reported,  and  the  opinion  of  one  of  the 
judges  is  published  in  2  McCarter  493. 

It  does  not  appear  that  the  opinion  heretofore  published  was  read  in 
open  court,  or  that  the  legal  principles  it  announces,  were  concurred  in  by 
any  other  member  of  the  court.  In  so  far  as  it  may  be  understood  as  sanc- 
tioning rules  of  construction,  different  from  those  announced  in  the  opinion 
of  the  court,  it  can,  it  is  apprehended,  only  be  regarded  as  the  dissenting 
opinion  of  the  judge  by  whom  it  was  delivered.  Tlie  opinion  of  the  court 
was  read  by  Ogden,  J.  The  construction  adopted  by  the  learned  judge, 
being  derived  from  the  whole  scope  and  texture  of  the  will,  it  is  thought 
advisable,  in  order  to  a  clear  understanding  of  the  principles  upon  which 
.liis  opinion  rests,  to  publish  the  will  at  length. — The  Reporter. 


NOVEMBER  TERM,  18G3.  543 

Norris  v.  Ex'rs  of  Thomson. 

This  cause  was  heard  upon  appeal  from  the  opinion  of  the 
Chancellor  (reported  ante,  p.  218)  upon  the  construction  of 
the  will  of  John  R.  Thomson,  deceased. 

The  will  is  as  follows  : 

"  I  direct  my  debfs  and  funeral  and  testamentary  expenses 
to  be  paid,  and  I  appoint  John  M.  Reed,  Charles  Macalester, 
and  Alexander  H,  Thomson,  my  executors. 

I  do  hereby  give  and  bequeath,  all  and  singular,  the  books, 
))ictures,  plate,  china,  wines  and  liquors,  and  all  other  house- 
hold goods  and  furniture  of  every  kind,  which  shall  be  in 
and  about  my  house  at  Princeton,  and  also  in  and  about  my 
house  at  Washington,  and  all  my  horses  and  carriages  to 
my  wife,  Josephine  A.  Thomson. 

All  the  rest  and  residue  of  my  real  and  personal  estate,  of 
whatsoever  nature  or  kind,  or  wheresoever  situate,  I  give, 
devise,  and  bequeath  to  John  M.  Read,  Charles  Macalester, 
and  Alexander  H.  Thomson,  their  heirs,  executors,  and  ad- 
ministrators, in  trust  fur  the  following  uses  and  purposes; 

First.  To  give  to  my  sister,  Mrs.  Caroline  Norris,  two 
hundred  and  fifty  shares  of  the  capital  stock  of  the  New 
York  and  Baltimore  Transportation  Line;  to  my  sister, 
Adeline  Thomson,  two  hundred  and  fifty  shares  of  the  capi- 
tal stock  of  the  said  line;  to  my  sister,  Amelia  Read,  wife 
of  the  Hon.  John  M.  Read,  two  hundred  and  fifty  shares  of 
the  capital  stock  of  the  said  line  ;  to  my  nephew,  Alexander 
Hamilton  Thomson,  one  hundred  and  twenty-five  shares  of 
the  capital  stock  of  the  said  line  ;  and  to  my  niece,  Elizabeth 
Norris,  one  hundred  and  twenty-five  shares  of  the  capital 
slock  of  the  said  line. 

Second!}/.  I  give  to  my  friends,  John  M.  Read,  William 
H.  Gatzmer,  Richard  Shippen,  Dr.  Phineas  J.  Horwilz,  anil 
Joseph  P.  Norris,  the  husband  of  my  sister,  Caroline  Norris, 
five  bonds  of  one  thousand  dollars  each,  of  the  Delaware  and 
Raritau  Canal  Compatiy  and  Camden  and  Amboy  Railroad 
and  Transportation  Company,  redeemable  in  1889,  one  bond 
to  each  of  the  above  named  legatees. 

I  also  direct  to  be  paid  an  annuity  of  five  hundred  dollars, 


544       COURT  OF  ERRORS  AND  APPEALS. 

Norris  v.  Ex'rs  of  Thomson. 

during  his  natural  life,  to  my  brother,  Edward  R.  Thomson, 
of  the  United  States  navy. 

And  I  further  direct  that,  from  the  income  of  the  residue 
of  my  estate,  there  shall  be  paid  an  annual  sum  of  ten  thou- 
sand dollars,  payable  semi-annually,  to  my  wife,  Josephine 
A.  Thomson,  and  I  authorize  and  empower  my  said  wife,  by 
her  last  will  and  testament,  duly  executed,  to  direct,  limit 
or  appoint,  give  or  devise,  the  portion  of  the  estate  so  ap- 
propriated for  an  income  of  ten  thousand  dollars  a  year  for 
her  support,  to  give  or  devise  the  same  to  and  amongst  all 
and  every  the  children  of  my  sisters,  Caroline  Norris  and 
Amelia  Read,  and  their  children,  in  such  proportions,  and 
for  sucli  estate  or  estates,  as  she  may  think  proper;  or  if  my 
wife  so  chooses,  she  may,  by  her  last  will  and  testament 
aforesaid,  direct,  limit,  or  appoint,  give  or  devise  the  same  to 
and  among  my  sisters,  Caroline,  Adeline,  and  Amelia,  and 
their  children  and  grand-children,  and  my  brother  Edward, 
in  such  proportions,  and  for  such  estate  or  estates,  as  she 
may  think  proper;  and  my  said  trustees,  their  heirs,  execu- 
tors, and  administrators,  are  hereby  required  to  pay,  assign, 
convey  and  transfer  the  same  to  the  said  appointees,  accord- 
ing to  the  directions,  limitations,  apj)ointments,  gifts,  and 
devises  in  the  said  last  will  of  my  said  wife. 

And  I  further  direct  that,  if  the  income  from  my  estate, 
after  the  payment  of  the  bequests  herein  before  made,  shall 
exceed  the  sum  of  ten  thousand  dollars  a  year,  the  sur- 
plus be  invested  in  good  securities,  and  that  my  said  wife, 
Josephine,  shall  be  authorized  and  empowered  by  her  last 
will  and  testament,  to  give  and  devise  the  same  among  such 
benevolent,  religious,  or  charitable  institutions,  as  she  may 
think  proper. 

And  in  default  of  such  directions,  limitations,  and  appoint- 
ments, and  so  far  as  the  same  shall  not  extend,  then  to  pay, 
assign,  convey,  and  transfer  the  residue  to  my  said  three  sis- 
ters, Caroline,  Adeline,  and  Amelia,  and  my  brother  Edward, 
their  heirs,  executors,  and  administrators,  as  tenants  in  com- 
mon, to  whom  I  give  and  devise  the  same. 

Fourthly,  I   authorize  my  said  trustees  and  executors  to 


NOVEMBER  TERM,  1863.  545 

Nonis  V.  Ex'rs  of  Thomson. 

retain  and  hold  whatever  investments  I  may  have  at  my  de- 
cease, unless  requested,  in  writing,  by  my  wife  to  change  the 
same. 

I  authorize  my  said  executors  and  trustees,  in  either  capa- 
city, to  sell  and  convey  all,  or  any  part  of  my  estate,  real 
and  personal." 

The  appeal  was  argued  by 

Zabriskie  and  Beasley,  for  appellants. 

Bradley,  for  respondents. 

The  opinion  of  the  court  was  delivered  by 

Ogden,  J.  The  single  question  presented  for  adjudication 
by  this  case,  and  upon  which  the  respondents,  who  were  de- 
fendants in  the  Conrt  of  Chancery,  as  well  as  the  complain- 
ants, desired  the  direction  and  decree  of  that  court,  before 
they  could  safely  act  in  the  premises,  is  whether  the  com- 
plainants, who  are  legatees  named  in  the  last  will  of  John  R. 
Thomson,  deceased,  take  specific  or  general  legacies.  The 
subject  matters  of  the  bequests  were  shares  of  stock  in  the 
New  York  and  Baltimore  Transportation  Company,  and 
joint  bonds  of  the  Delaware  and  Raritan  Canal  and  the 
Camden  and  Amboy  Railroad  Companies.  The  characteris- 
tics of  specific  legacies  being  undisputed,  the  arguments  of 
counsel  have  been  confined  to  the  considerations,  whether 
the  language  employed  by  the  testator,  under  the  circum- 
stances by  which  at  the  time  he  was  surrounded,  ascertained 
from  the  relation  which  he  bore  to  the  legatees,  the  nature 
of  his  property,  and  his  presumed  purpose  not  to  die  intes- 
tate as  to  any  portion  of  his  accumulations  then  existing  or 
prospective,  viewed  and  considered  in  connection  with  the 
general  disposition  he  made  of  his  estate,  and  with  the  whole 
texture  of  the  will,  manifest  a  clear  intention  on  his  part, 
that  the  stock  and  bonds  given  by  him  to  the  complainants, 
should  be  furnished  to  the  objects  of  his  bounty,  out  of  the 
same  species  of  securities  which  were  held  by  him  clear  of 


54a      COURT  OF  ERRORS  AND  APPEALS. 

Norris  v.  Ex'rs  of  Thomson. 

encumbrance  at  the  date  of  his  will,  and  retained  by  him  in 
that  condition  to  the  hour  of  his  death,  and  vested  by  his 
will  in  trustees,  on  several  special  expressed  trusts. 

If  such  intention  sufficiently  appears  from  those  consider- 
ations taken  together,  the  respective  legacies  are  specific,  and 
the  will  cannot  be  carried  into  effect,  without  appropriating 
and  handing  over  to  th^  legatees,  the  quantum  of  stock  and 
of  bonds,  directed  to  be  given  to  them,  in  the  condition  in 
which  they  were  found  by  the  executors  and  trustees,  after 
the  death  of  the  testator. 

It  is  conceded,  that  if  he  had  directed  the  trustees  to  give  to 
his  sisters,  and  nephew  and  niece,  a  certain  number  of  shares 
of  his  stock,  and  to  his  friends  five  of  his  bonds,  he  thereby 
would  have  so  individuated,  by  words,  the  property  which  he 
desired  that  his  legatees  should  have  in  kind,  that  a  serious 
question  could  not  have  been  made  about  his  intention.  If, 
therefore,  a  like  intention  is  fairly  inferable  from  the  lan- 
guage adopted,  taken  in  connection  with  the  several  consid- 
erations already  adverted  to,  the  specific  character  of  the 
legacies  must  be  determined  by  such  intention. 

It  appears  that  the  will  was  made  in  July,  1862,  only  a 
few  weeks  anterior  to  the  testator's  death  in  September,  and 
during,  or  shortly  before,  his  last  sickness,  and  probably 
after  he  had  become  unfitted,  from  disease,  to  engage  in  ac- 
tive business.  He  seems  to  have  retained  a  perfect  knowledge 
of  the  amount  and  nature  of  his  property,  and  to  have  been 
peculiarly  conversant  with  the  value,  as  investments,  of  the 
stocks  and  bonds  which  he  was  about  to  bequeath.  He 
manifestly  designed  to  provide  munificently  for  his  wife,  and 
to  give  to  his  sisters,  and  a  nephew  and  niece,  portions  of  his 
property,  from  which,  in  his  judgmemt,  they  severally  wou^d 
reap  ample  returns.  He  likewise  was  mindful  of  five  tried 
and  valued  friends,  and  wished  to  bequeath  to  each  of  them 
a  moderate  legacy,  as  expressive  of  his  estimation  of  their 
worth.  His  confidence  in  the  extent  and  productiveness  of 
the  securities  that  he  held,  is  manifested  by  a  provision  in 
the  will  for  the  investment  and  ultimate  disposition  of  sur- 
plus interest  and  dividends,  which  he  supposed  might  remain 


NOVEMBER  TERM,  18G3.  547 

Norris  v.  Ex'rs  of  Thomson. 

after  applying  enough  of  his  stock  and  bonds  to  discharge 
the  lega<;ies  to  the  complainants,  and  after  paying  $10,000  a 
year  to  his  wife,  and  likewise  an  annuity  of  $500  to  his 
brother.  His  injunction  to  the  executors  and  trustees,  to 
hold  the  stecks  and  other  investments  in  trust,  for  the  pur- 
poses of  the  will,  and  not  to  chavge  any  of  them,  without 
the  written  request  of  his  widow,  is  additional  proof  that 
he  was  fully  satisfied  with  his  own  judgment  in  selecting 
valuable  securities  for  his  moneys,  and  that  he  wished  those 
securities  to  be  continued  intact  until  his  wife,  the  person 
who  fully  knew  his  mind  on  that  subject,  and  who  is  chiefly 
interested  in  the  future  avails  of  his  property,  should  deter- 
mine that  a  change  of  any  of  them  would  be  advantageous  to 
the  estate. 

After  directing  the  payment  of  his  debts  and  appointing 
his  executors,  he  commenced  disposing  of  his  property,  by  a 
specific  legacy  to  his  wife,  of  his  books,  pictures,  plate,  and 
household  furniture  of  every  kind,  in  his  mansion-house  at 
Princeton,  and  in  and  about  his  house  at  Washington,  and 
all  his  horses  and  carriages.  Then  he  gave,  devised,  and  be- 
queathed all  the  rest  and  residue  of  his  estate,  real  and  per- 
sonal, to  his  executors,  their  heirs,  executors,  and  adminis- 
trators, in  trust,  for  certain  uses  and  purposes.  By  this  devise 
and  bequest  he  transferred  to  them,  as  trustees,  all  the  stocks, 
bonds,  and  other  securities,  which  he  possessed  and  was  en- 
titled to,  having  in  his  mind  the  purpose  of  directing  them 
to  retain  those  securities,  for  fulfilling  the  requirements  of  the 
trusts  he  was  about  to  declare. 

He  then  proceeded  to  6i)ocifv  the  purposes  to  which  the 
estate  thiis  put  in  trust  should  be  applied. 

First.  For  his  trustees  to  give  to  each  of  his  three  sisters, 
two  hundred  and  fifty  shares  of  the  ca])i(al  stock  of  the  New 
York  and  Baltimore  Transportation  line,  and  to  a  ne{)hew 
and  niece  each,  one  hundred  and  twenty-five  shares  of  the 
capital  stock  of  the  said  line  ;  the  testator,  at  that  time,  hold- 
ing 3,680  shares  of  that  stock  unencumbered. 

Secondly.  To  give  to  each  of  his  five  friends,  whom  he 
named,  one  bond  of  $1000,  of  the  joint  companies,  redeema- 


548   COURT  OF  ERRORS  AND  APPEALS. 

Norris  v.  Ex'rs  of  Thomson. 

ble  ill  1889  ;  he,  the  testator,  then  holding  twenty-nine  bonds 
of  that  description  and  class,  also  free  and  unencumbered  ; 
and  likewise  a  large  number  of  railroad  and  canal  bonds,  then 
in  hypothecation. 

The  unencumbered  bonds  and  shares  were  su!*ceptible  of 
delivery  immediately  after  his  death,  while  those  in  pledge 
could  not  be  under  the  control  of  the  trustees,  until  the  debts, 
for  which  they  were  hypothecated,  were  paid.  The  signifi- 
cance of  this  method,  in  designating  by  an  ear-mark,  the 
property  for  his  legatees,  cannot  be  blinked  or  disregarded. 

After  directing  his  trustees  to  pay  an  annuity  of  $500  to 
his  brother  during  his  natural  life,  he  directs  that  from  the 
income  of  tlie  residue  of  his  estate,  provision  shall  be  n^ade 
for  his  wife,  by  paying  her  a  fixed  sum  semi-annually.  What 
is  the  natural  import  of  that  direction  ?  What  could  the 
testator  have  meant,  except  that  the  fund  from  which  her 
annuity  was  to  arise,  was  the  i-esidue  of  the  bulk  of  his  estate 
put  in  trust,  after  taking  from  it  the  one  thousand  shares  of 
New  York  and  Baltimore  Transportation  stock,  and  the  five 
'89  bonds  of  the  joint  companies?  Did  he  contemplate  tl)at 
the  dividends  on  that  stock,  and  the  interest  accruing  on  those 
bonds,  should  constitute  a  part  of  the  income  from  which  the 
first  semi-annual  })ayment  should  be  made  to  Mrs.  Thom- 
son ?  Could  that  stock  and  those  bonds  be  properly  consi- 
dered as  a  portion  of  the  estate,  liable  to  be  apj)ropriated  for 
furnishing  an^/  part  of  her  annual  income,  upon  a  fair  read- 
ing of  that  clause  in  the  will  in  connection  with  the  preceding 
and  following  clauses?  If  such  disposition  of  the  stock  and 
bonds  entered  into  the  intention  of  the  testator,  what  mean- 
ing is  to  be  given  to  the  words  "  income  of  the  residue  of  my 
•  estate"  as  the  source  from  which  the  annuity  should  flow? 

Again.  If  the  legacies  shall  be  held  to  be  general,  the 
itestator  died  intestate  as  to  the  accruing  dividends  and  in- 
terest on  those  securities  held  by  him,  which  result  is  always 
;to  be  avoided,  if  practicable  ;  or  he  intended  that  the  amounts 
thereof  should  fall  into  that  undefiuable  surplus  of  income, 
which  he  directed  his  executors  to  invest  in  good  securities, 
,for  appropriation  by  his  wife  iu  her  lust  will  among  benevo- 


NOVEMBER  TERM,  1863.  5i9 

Norris  v.  Ex'rs  of  Thomson. 

lent,  religious,  and  charitable  institutions.  Can  this  instru- 
ment he  fairly  read,  in  the  liglit  of  all  the  peculiar  surround- 
ing circumstauces,  and  such  intention  be  justly  imputable  to 
the  testator  ? 

The  intention  of  a  testator  upon  the  subject  of  specific 
legacies,  as  in  every  question  on  th.e  construction  of  wills,  is 
the  principal  object  to  be  ascertained,  and  it  is  therefore 
necessary,  that  the  intention  be  either  expressed  in  reference 
to  the  thing  bequeathed,  or  otherwise  clearly  appear  from  the 
will,  to  constitute  a  legacy  specific.     1  Roper  on  Leg.  193. 

This  is  not  a  technical  arbitrary  rule,  to  be  answered  only 
by  the  use  of  particular  words  and  expressions,  but  is  an 
embodiment  of  the  general  principles,  by  which  the  character 
of  legacies  should  be  tested  and  determined  ;  each  will  rest- 
ing, for  correct  construction,  upon  the  language  employed, 
and  established  surrounding,  significant  circumstances,  if  such 
exist. 

It  seems  to  me  that  the  language  used  in  creating  and 
directing  the  trusts,  was  a  clear  reference  to  the  stocks  and 
particular  bonds  which  Mr.  Thomson  possessed  when  he 
executed  his  will,  and  it  shows  he  meant  that  the  legacies 
should  be  discharged  by  his  trustees  handing  over  to  the  re- 
spective legatees,  stock  and  bonds  which  they  would  find  in 
his  strong  box  after  his  death. 

If,  however,  the  language  of  the  will  does  not  of  itself 
come  up  to  the  rule  laid  down  in  the  books,  the  circumstan- 
ces by  which  the  testator  was  surrounded  when  the  will  was 
drawn,  and  the  whole  scope  and  texture  of  the  instrument, 
taken  in  connection  with  the  particular  clauses  of  bequest, 
clearly  indicate  the  intention  for  which  the  appellants  and 
complainant  contend. 

It  is  the  duty  of  this  court  to  make  such  a  decree  as  a 
majority  of  the  members  think  the  Court  of  Chancery  should 
have  made. 

In  the  prayer  of  the  bill,  the  complainants  ask  that  the 
legacies  of  the  stock  and  bonds  may  be  declared  to  be  spe- 
cific legacies;  and  that  the  shares  and  bonds,  together  with  the 


550      COUrtT  OF  ERRORS  AND  APPEALS. 

Hudnit  V.  Nash. 

divideiuls,  interest,  and  income,  accrued  and  accruing  thereon, 
may  be  transferred  and  paid  to  the  several  legatees  thereof. 
The  decree  of  the  Chancellor  adjudging  the  legacies  to  be 
general,  and  that  so  much  of  the  bill  as  prayed  for  the  pay- 
ment of  the  income  and  interest,  bje  dismissed,  should  be  re- 
versed, and  this  court  should  decree  the  legacies  to  be  specific, 
and  that  the  income  and  interest  should  be  paid  to  the  lega- 
tees, according  to  the  prayer  of  the  bill.  The  papers  should 
be  remitted  to  the  Court  of  Chancery,  with  such  instructious. 

Affirmed,  5  C.  E.  Gr.  489. 


MARCH   TERM,   1862. 

Samuel  B.  Hudnit  and  Gabriel  H.  Slater,  appellants, 
and  Tobias  Nash,  respondent. 

1.  The  well  settled  rule  in  equity  is,  that  if  the  lender  comes  into  court 
seeking  to  enforce  a  usurious  contract,  equity  will  repudiate  the  contract. 
But  if  the  borrower  seeks  relief  against  the  usurious  contract,  the  only  terras 
upon  which  llie  court  will  interfere,  are  that  lie  shall  pay  what  is  really 
and  bona  fide  due. 

2.  A  bill  for  foreclosure  by  a  second  naortgagee,  making  the  first  mort- 
gagee a  defendant,  as  against  such  first  mortgagee,  is,  in  efiect,  a  bill  to 
redeem,  not  to  foreclose. 

3.  The  first  mortgagee  is  not  a  necessary,  nor  a  proper  party  to  a  bill  by 
a  subsequent  mortgagee,  if  the  sole  design  of  the  suit  is  a  foreclosure  of  the 
equity  of  redemption.  Technically,  all  that  can  be  asked  in  such  case  is, 
that  the  complainant  be  permitted  to  redeem  the  prior  encumbrance. 

4.  Where,  as  in  our  practice,  prior  encumbrancers  are  permitted  to  be 
made  parties  to  a  bill  for  foreclosure  and  sale  of  mortgaged  premises,  if 
the  first  mortgagee,  defendant  in  such  bill,  comes  in  with  his  mortgage,  he 
simply  assents  to  the  relief  prayed  for  by  the  complainant. 

5.  As  against  the  first  mortgagee,  the  relief  prayed  for  will  not  be 
granted,  unless  by  his  consent,  or  upon  payment  of  the  amount  actually 
due  upon  his  mortgage. 

6.  Where,  to  a  bill  for  foreclosure,  the  answer  of  the  owners  of  the  equity 
of  redemption  raises  the  defence  of  usury  to  the  mortgage  of  a  co-defend- 
ant, such  answer  is  in  the  nature  of  a  cross-bill,  seeking  relief  against  the 
usurious  mortgage. 


MAECH  TERM,  1862.  551 

Hud  11  it  V.  Nasli. 

7.  Upon  a  bill  filed  by  a  second  mortgagee  for  foreclosure,  and  seeking 
to  avoid  the  first  mortgage  as  usurious,  no  decree  will  be  made  declarinf, 
the  usurious  mortgage  a  valid  encumbrance  for  tiie  amount  actually  ad- 
vanced, unless  by  the  consent,  express  or  imiilied,  of  the  owners  of  tut 
equity  of  redemption,  to  the  proceedings. 

8.  But  if  the  parties  interested  iri  the  equity  of  redemption,  concur  in  th- 
prayer  of  the  bill  by  resisting  the  usurious  mortgage,  and  the  cause  i. 
brought  to  final  hearing  upon  the  pleadings  and  proofs,  a  decree  pronounc- 
ing tlie  mortgage  usurious,  and  declaring  it  an  encumbrance  only  for  thi: 
amount  actually  advanced,  will  not  be  reversed  at  the  instance  of  the; 
owner  of  the  equity  of  redemption. 


This  was  an  appeal  from  a  decree  made  by  Whelpley,  Chief 
Justice,  sitting  as  judge  in  equity,  in  the  Circuit;  Court  of  the 
county  of  Hunterdon.  The  bill  was  filed  by  Peter  Polhenius 
to  foreclose  a  mortgage  given  by  Francis  McCue  and  wife, 
on  the  6th  of  April,  1858,  to  Elisha  Warford,  to  secure  the 
payment  of  $600  ;  and  by  Warford  assigned  to  the  com- 
j)hiinant.  The  premises  were  subject  to  a  prior  mortgage 
given  by  McCue  and  wife  to  Tobias  Nash,  which  mortgage, 
the  bill  alleged,  was  executed  and  delivered  upon  an  usurious 
contract  between  McCue  and  Nash,  and  was,  therefore,  null 
and  void  as  against  the  complainant,  and  no  encumbrance 
upon  the  mortgaged  premises.  There  was  also  a  third  mort- 
gage in  order  of  priority  upon  the  premises,  given  by  McCue 
and  wife  to  Luther  Opdyke,  and  by  him  assigned  to  John  F. 
Tinsman,  also  one  of  the  defendants.  Subsequent  to  the 
date  of  these  mortgages,  McCue's  right  and  interest  in  the 
premises  were  sold  by  the  sheriff  under  an  execution  at  law 
against  him,  and  purchased  by  Samuel  B,  Hudnit  and  Ga- 
briel H.  Slater,  the  appellants.  The  holders  of  these  mort- 
gages, and  the  owners  of  the  equity  of  redemption,  were 
made  defendants  to  ihe  bill. 

Tinsman  answered,  claiming  the  amount  of  his  mortgage 
as  a  valid  encumbrance  upon  the  premises,  setting  up  usury 
as  a  defence  against  the  Nasii  mortgage. 

Hudnit  and  Slater  answered,  claiming  to  be  the  owners  of 
the  equity  of  rcdemj)ti()n,  admitting  the  mortgage  of  the  com- 
plainant, and  also  the  mortgage  of  Tinsman  to  be  valid  en- 


552       COURT  OF  ERRORS  AND  APPEALS. 


Hudnit  V.  Naah. 


cumbrances,  but  insisting  that  the  mortgage  of  Nash  was 
usurious  and  void,  and  that  they  purchased  the  premises  at 
the  siieriff's  sale,  with  the  understanding  and  belief  that 
they  were  not  subject  to  the  encumbrance  of  the  said  mort- 
gage. 

Tiie  answer  of  Nash  sets  out  the  origin  of  the  indebtedness 
from  McCue,  for  which  his  mortgage  was  given,  and  avers 
that  the  money  was  advanced,  and  the  mortgage  taken  upon 
the  distinct  understanding,  that  it  should  be  the  first  encum- 
brance in  order  of  priority  upon  the  mortgaged  premises,  but 
refuses  to  respond  to  the  allegation  of  the  complainant's  bill  of 
complaint,  that  the  mortgage  is  tainted  with  usury,  and  there- 
fore null  and  void  ;  and  the  said  defendant  insists  that,  by 
the  laws  of  the  state  of  New  Jersey,  and  the  rules  of  this  court, 
he  is  not  obliti:ed  to  make  answer  unto  the  said  allegation  of 
the  complainant's  bill,  inasmuch  as  he  might  thereby  be  sub- 
ject to  a  penalty  of  forfeiture  by  the  laws  of  this  state. 

Depositions  having  been  taken,  the  cause  was  heard  and 
argued  by  counsel  upon  the  bill,  answers,  and  proofs,  when 
the  following  opinion  was  delivered  by  the  court. 

Whelpley,  C.  J.  It  is  conceded,  on  the  proof  made, 
that  Nash's  mortgage  was  founded  on  an  usurious  contract, 
although  the  usury  was  not  included  in  the  mortgage,  but 
took  the  shape  of  a  note,  given  by  way  of  bonus,  which  has 
not  been  paid. 

That  there  was  an  usurious  contract  upon  which  the  mort- 
gage was  given,  is  clear  upon  the  evidence.  The  only  ques- 
tion to  be  decided  is,  can  the  plaintiff  and  defendants  avail 
themselves  of  the  defence  in  this  suit? 

The  bill  is  filed  by  the  assignee  of  the  second  mortgage 
given  by  McCue  and  wife,  against  Nash,  the  first  mortgagee, 
Tinsman,  the  owner  of  the  third  mortgage,  and  Hudnit  and 
Slater,  the  [)urchasers  of  the  mortgaged  premises. 

The  bill  charges,  in  general  terms,  that  the  Nash  mort- 
gage was  executed  upon  an  usurious  contract,  and  void  for 
that  reason. 


MARCH  TERM,  1862.  553 

Hiidnit  V.  Nash. 

Nash  answered  the  bill,  passing  by  the  allegations  in  re- 
gard to  the  usury,  neither  admitting,  nor  denying  it.  Tins- 
man  answers,  and  sets  it  up  ;  so,  also,  do  Hudnit  and  Slater. 
Tinsman  prays  that  he  may  have  an  opportunity  to  con- 
test the  Nasli  mortgage.  Hudnit  and  Slater  pray  the  inter- 
ference of  the  court  to  have  the  mortgage  declared  void. 

If  Nash  had  filed  his  bill  to  foreclose,  and  made  the  other 
defendants  and  Polheraus,  defendants,  and  such  proof  had 
been  made  as  in  this  case,  there  can  be  no  doubt  but  that 
the  defendants  would  have  been  entitled  to  a  decree  that  his 
mortgage  was  void  for  usury.  Then  the  usury  could  have 
been  used  as  a  defence  to  the  action  of  Nash. 

But  if  the  defendants  cannot  avail  themselves  of  the  de- 
fence without  the  aid  of  a  court  of  equity,  they  must  waive 
the  forfeiture,  and  consent  to  pay  the  amount  actually  due.  2 
Parson's  on  Con.  404,  and  cases  there  cited  in  note  C;  Rogers 
V.  Rathhun,  1  Johns.  Ch.  R.  367  ;  Fanning  v.  Dunham,  5 
Johns.  Ch.  R.  122;  Fulton  Bank  v.  Beach,  \  Paige  433. 
He  that  asks  equity  must  do  equity. 

But  if  a  party  comes  into  court,  and  asks  relief,  the  court 
will  compel  him  to  do  equity,  although  the  defendant  has  not 
demurred  to  the  bill.  The  court  does  not  require  the  party 
to  ask  the  aid  of  this  principle  by  demurrer,  but  will  give 
relief  at  the  hearing.  ^lorgan  v.  Szhermcrhorn,  1  Paige 
644  ;  Ruddle  v.  Ambler,  18  Arh  369. 

When  a  bill  is  filed  for  relief  against  an  usurious  mort- 
gage, it  will  be  upon  terms  of  paying,  or  offering  to  pay,  what 
is  really  due. 

So  stern  is  the  court  against  enforcing  a  forfeiture,  that  it 
was  held  in  Mason  v.  Gardner,  4  Bro.  Ch.  C.  436,  that  a 
cross-bill,  filed  by  a  defendant  in  aid  of  his  defence,  was  bad 
on  demurrer,  for  not  offering  to  pay  what  was  due.  This,  it 
will  be  perceived,  was  a  case  where  it  was  set  up  by  way  of 
defence  to  a  suit  brought  by  the  usurer.  This  case  is  cited 
with  approbation  in  The  Fulton  Bank  v.  Beach,  and  is  the 
law  of  the  court.  The  same  principle  has  been  held  in  our 
own  Court  of  Chancery.     Saxto7i's  Ch.  364. 


654       COURT  OF  ERRORS  AND  APPEALS. 

Iludnit  V.  Nash. 

As  against  the  complainant,  beyond  all  quesjtion  it  is  the 
fluty  of  the'court  to  decree  for  Nash's  mortgage.  The  com- 
plainant's decree  on  his  mortgage  must  be  upon  terms  of 
paying  Nash's  mortgage,  for  the  usury  in  this  case  was  never 
j)aid. 

Are  the  viefendants,  Tinsman  and  Hud  nit,  and  Slater,  in 
any  better  situation  to  avoid  the  Nash  mortgage,  than  the 
com])lainaut? 

In  this  suit  they  occupy  both  the  situation  of  defendants 
and  complainants.  As  defendants  they  may  contest  the  va- 
lidity of  the  complainant's  mortgage;  that  by  the  pleadings 
is  put  directly  in  issue.  They  are  also  complainants  seeking 
relief  upon  their  own  mortgages,  or,  as  owners  of  the  equity, 
asking  to  have  their  property  discharged  of  the  usurious  lien. 

As  to  the  Nash  mortgage,  they  do  not  deny  the  loan  of 
the  money  by  Nash  to  McCue.  They  do  not  deny  the  exe- 
cution of  the  mortgage  in  due  form  of  law,  and  its  record  as 
prescribed  by  law,  but  they  set  up  new  matter,  not  responsive 
to  any  bill  filed  by  Nash,  not  in  answer  to  any  allegation 
made  by  him  ;  matter  which  the  complainant  had  no  right 
to  set  up  to  avoid  the  mortgage,  without  an  offer  to  pay  the 
amount  due. 

As  to  this  new  matter,  they  are  occu{)ying  the  position  of 
complainants  asking  relief  against  Nash,  that  he  may  have 
the  statute  of  usury  ap[)liod  to  his  mortgage. 

Although  they  stand  in  the  position  of  defendants  nora'i- 
nally,  that  can  make  no  difference.  The  defendant,  Nash, 
did  not  voluntarily  come  into  court  to  enforce  his  mortgage, 
and  ought  not  to  be  deprived  of  the  benefit  of  the  principle 
because  his  antagonist  occupies  the  nominal  position  of  de- 
fendant instead  of  that  of  plaintiff. 

The  defendants  were  all  bound  to  answer  the  complainant's 
bill,  if  at  all,  at  the  same  time.  He  could  not  lawfully  pray 
relief  against  the  Nash  mortgage,  without  an  offer  to  pay  the 
amount  due. 

The  defendant,  Nash,  was  not  bound  to  answer  the  allega- 
tions of  the  other  answers.     He  could  not  have  known  what 


MARCH  TERM,  1862.  r)o5 

Hudnit  %'.  Nash. 

they  contained,  unless  he  deferred  his  answer  until  they  were 
filed. 

Where  different  encumbrancers,  defendants  in  a  foreclo- 
sure suit,  wish  to  question  the  validity  of  their  several  en- 
cumbrances, a  proper  issue  cannot  be  formed  witliout  a  cross- 
bill filed  by  the  defendant,  wishing  to  contest  the  validity  of 
the  claim  of  his  co-defendant.  The  defendant  whose  claim 
is  attacked,  ought  not  to  be  deprived  of  the  benefit  of  his  an- 
swer. 

It  is  true  in  this  case  that  Nash  did  not  answer  the  bill  of 
comj)laint,  but  he  was  not  bound  to  do  it;  the  particulars  of 
the  usurious  contract  were  not  set  forth  as  required  by  the 
j)ractice  of  the  court.     Stonfs  Eq.  PL  §  393-9. 

Regidarly,  the  prayer  of  an  answer  is  only  to  be  dismissed 
from  the  court  with  his  costs. 

But  the  court  has,  in  modern  times,  dispensed  with  the  ne- 
cessity of  a  cross-bill  in  cases  wliere  the  whole  matter  is  be- 
fore the  court,  and  the  party  is  not  thereby  deprived  of  any 
of  his  substantial  rights  by  a  decree  in  the  existing  suit, 
Ames  V.  New  Jersey  FrcmUinite  Co.,  1  Beas.  66 ;  Elliot  v. 
Fell,  1  Paige  Ch.2QS. 

But  the  court  will  never  dispense  with  a  cross-bill  where 
any  of  the  defendants  would  be  prejudiced  by  the  want  of 
one. 

This  is  a  peculiar  case.  The  complainant  might  have  pro- 
ceeded without  making  Nash  a  party  defendant.  In  that 
case  the  property  would  have  been  sold  subject  to  his  mort- 
gage, and  he  would  have  been  forced  to  assume  the  position 
of  a  complainant  in  equity,  or  plaintiff" at  law;  in  either  of 
these  cases  the  defendant  might  have  set  up  usury  as  a  de- 
fence. But  the  complainant  has,  for  the  purpose  of  disposing 
of  his  claim  in  this  suit,  made  him  a  party  defendant. 

No  decree  can  be  made  in  this  suit,  except  such  an  one  as 
is  grounded  upon  tiie  prayer  of  the  complainant's  bill.  The 
other  defendants  can  have  no  relief  to  which  the  complain- 
ant is  not  entitled,  and  we  have  already  seen  that  he  is  only 
entitled  to  a  decree  upon  the  basis  of  paying  the  amount  due. 


556   COURT  OF  ERRORS  AND  APPEALS. 

Hudnit  V.  Nash. 

All  the  parties  in  this  case  ask  for  a  decree  upon  the  bill, 
answers,  and  proofs,  as  they  stand.  I  think  there  must  be 
a  decree  for  the  payment  of  all  the  mortgages,  in  the  order 
of  their  priority.  I  cannot  see  ray  way  clear  to  make  any 
other  decree. 

The  complainant  cannot  object  to  this  decree.  He  brought 
Nash  into  court  unnecessarily  ;  he  has  come  in  and  submitted 
to  have  such  a  decree  made  as  the  complainant  is  lawfully  en- 
titled to;  he  is  not  interested  in  the  other  encumbrances,  as 
he  is  entitled  to  priority  over  them. 

The  other  defendants,  Tinsman,  and  Hudnit,  and  Slater, 
have  not  objected  to  his  being  a  party  to  this  suit  in  the  ca- 
pacity of  a  defendant,  clothed  with  all  the  rights  of  a  defend- 
ant. They  have  not  asked  the  court  for  a  decree  subject  to  the 
rights  of  Nash,  or  to  have  him  stricken  from  tiie  bill  as  an 
improper  or  unnecessary  party,  but  have  asked  for  a  decree 
of  the  court  upon  his  rights  in  this  suit.  I  think  they  have  no 
cause  of  complaint,  if  this  court  does  equity  between  all  the 
contending  parties. 

What  that  is,  seems  to  be  free  from  doubt.  The  claims  of 
all  should  be  paid  out  of  the  proceeds  of  the  sale,  in  the  order 
of  their  priority. 

Let  there  be  a  reference  to  a  master  to  ascertain  the  amount 
due  on  all  the  encumbrances,  and  decree  accordingly. 

The  following  decree  was  thereupon  made: 
This  matter  coming  on  for  argument  at  the  regular  April 
Term  of  this  court,  held  at  Flemington,  in  and  for  the  county 
of  Hunterdon,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  sixty-one,  in  the  presence  of  George  A.  Allen,  esq,, 
of  counsel  with  the  complainant,  Bennet  Vansyckel,  esq.,  of 
counsel  with  Tobias  Nash,  Alexander  Wurts,  esq.,  of  counsel 
with  John  L.  Tinsman,  and  Edward  R.  Bullock,  esq.,  of  coun- 
sel with  Samuel  Hudnit  and  Gabriel  H.  Slater,  defendants, 
and  the  bill,  answer,  and  proofs  being  read,  and  the  argument 
of  the  said  counsel  being  heard,  and  the  court  having  taken 
to  this  time  for  consideration,  and  being  now  of  opinion  that 


MARCH  TERM,  1862.  557 

Hudtiit  V.  Nash. 

the  objections  taken  to  tlie  mf)rtgage  given  by  the  said  Fran- 
cis INIcCue  and  wife  to  said  Tobias  Nash  are  inequital)le,  and 
shouki  not  prevail,  bnt  that  the  said  mortgage,  as  well  as  the 
other  mortgages  set  up  in  the  pleadings,  should  be  held  to  be 
encumbranees  on  said  mortgaged  premises  in  the  oi'der  of  their 
priority,  and  which  said  order  appears  from  the  said  proofs 
and  exhibits.  It  is,  therefore,  on  this  eighth  day  of  April,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  sixty- 
one,  by  the  said  Circuit  Court  of  the  county  of  Hunterdon, 
ordered,  adjudged,  and  decreed,  that  the  said  mortgages  are, 
and  the  same  are  hereby  declared  to  be  valid  and  subsisting 
encumbrances  on  the  premises  described  therein,  and  are  enti- 
tled to  priority  and  payment  out  of  said  premises  in  the  fol- 
lowing order,  that  is  to  say  :  In  the  first  place,  the  principal 
and  interest  money  mentioned  in  and  secured  by  the  said  bond 
and  mortgage  of  the  said  Tobias  Nash,  together  with  his  taxed 
costs,  is  to  be  paid.  In  the  second  place,  the  principal  and  in- 
terest money  mentioned  in  and  secured  by  the  said  bond  and 
mortgage  of  the  said  complainant  i;^  to  be  paid,  together  with 
his  taxed  costs.  And  in  the  third  place,  the  principal  and  in- 
terest money  mentioned  in  and  secured  by  the  said  bond  and 
mortgage  now  held  by  the  said  John  L.  Tinsinan,  assignee, 
&c.,  together  with  his  taxed  costs,  is  to  be  paid.  And  it  is 
further  ordered,  that  for  the  purpose  of  making  said  moneys, 
a  sale  be  made  of  said  mortgaged  premises,  and  that  for  the 
purpose  of  ascertaining  the  amounts  due  and  to  grow  due 
on  said  mortgages,  respectively,  that  it  be  referred  to  Charles 
Bartles,  one  of  the  masters  of  the  Court  of  Chancery  of  New 
Jersey,  who  is  hereby  directed  to  report  thereon  with  all  con- 
venient speed. 

Hudnit  and  Slater,  the  owners  of  the  equity  of  redemp- 
tion, appealed  from  that  part  of  the  said  decree,  which 
adjudges  that  the  mortgage  of  Tobias  Nash  was,  and  is,  a 
valid  and  subsisting  encumbrauce  upon  the  mortgaged  prem- 
ises in  the  pleadings  mentioned,  and  entitled  to  payment  out 

Vol.  r.  2  m 


558      COURT  OF  ERRORS  AND  APPEALS. 

riudnit  V.  Nash. 

of  said  premises  according  to  its  priority.     Nash  auswered 
the  petition  of  appeal. 

31r.  Wmis,  for  appellants,  cited  Nix.  Dlcf.  552,  §  6  ;  Con- 
stitution, Art  VI,  Sec.  II,  §  5,  6  ;  Art.  VI,  Seo.  F,  §  3  ;  4 
Bra.  CI).  li.  436  ;  Wortman  v.  Skinner,  1  Beas.  362  ;  Ames 
V.  N.  J.  Franklinite  Co.,  Ibid.  67,  160;  Grosvenor  v.  The 
Flax  and  Hemp  3Ian'g  Co.,  1  Greenes  Ch.  R.  453  ;  Roberts 
V.  Gcf,  4  Barn.  &  Aid.  92  ;  2  Parsons  on  Con.  404  ;  1  Beas. 
31,  67;  3  Halst.  Ch.  R.  531. 

3Ir.  B.  Vansychd  and  Mr.  Beasley,  for  respondent,  cited 
Rogers  v.  Rathbun,  1  John.  Ch.  R.  367  ;  Eagleson  v.  /S/ioi- 
li'e//,  Ibid.  537  ;  Fanning  v.  Duyiham,  5  Johns.  Ch.  R.  122  ; 
Fulton  Bank  v.  Beach,  1  Pa/f/e  429,  433  ;  Morgan  v.  Scher- 
merhorn.  Ibid.  546  ;  jPo.s^  v.  Bank  of  Utica,  7  i/i//  391  ; 
Rexford  v.  Widger,  3  ^r/.r6.  C'i.  /^.  641  ;  Remcr  v.  Shaw,  4 
i/a/sL  C/i.  i^.  355  ;  3  Baniell's  Ch.  Pr.  1342  ;  ^^/or?/'s  ^^. 
PA,  §  392-3  ;  Pattison  v.  //w//,  9  Coi6'm  747  ;  A^jry'.-?  ^9. 
PL,  §  392,  710^6  2  ;  Ames  v.  T/ie  iV.  J.  Franklinite  Co.,  1 
.Beas.  66  ;  j5;//io«  v.  Pe//,  1  Paige  268  ;  Co/Za/v/  v.  Smith,  2 
iieos.  43  ;  8  Paige  453  ;  4  Paige  526 ;  2  DanieWs  Ch.  Pr. 
752,  no^e  2  ;  2  Green's  P.  502  ;  3  Wend.  579. 

The  opinion  of  the  court  was  delivered  by 

Green,  C.  A  bill  of  foreclosure  was  tiled  in  the  court 
lielow  by  the  second  mortgagee.  Nash,  the  first  mortgagee, 
and  Hudnit  and  Slater,  the  appellants,  the  owners  of  the 
equity  of  redemption,  were  made  parties,  defendant.  The  bill 
alleged  that  the  mortgage  of  Nash  was  void  for  usury.  It 
prayed  a  sale  of  the  mortgaged  premises  for  the  payment  of 
the  complainant's  debts,  and  a  foreclosure  of  the  equity  of 
redemption  against  all  the  defendants.  The  appellants,  Hud- 
nit and  Slater,  by  their  answer,  claimed  to  be  the  owners  of 
the  equity  of  redemption.  They  admitted  the  complainant's 
mortgage,  but  insisted  that  the  mortgage  of  Nash  was  void 
for  usury,  and  constituted  no  encumbrance  upon  the  mort- 
gaged  premises.     The   cause  was   brought   to   final   hearing 


MARCH  TERM,  1862.  55S 

Hudnil  V.  Nash. 

upon  the  j)leadiiigs  and  proofs.  The  evidence  showed  that 
the  mortgage  of  Nash  was  tainted  with  usury;  the  mort- 
gagee having  received,  in  addition  to  the  mortgage  for  $1500, 
the  sum  advanced,  a  note  for  $200  as  a  bonus  or  additional 
consideration  for  the  loan  of  the  money.  The  court  held 
that  upon  the  state  of  the  pleadings,  the  defence  of  usury  wan 
not  available,  and  that  the  mortgagee  was  entitled  to  a  decree 
for  the  sum  actually  advanced  upon  the  mortgage  loan. 

The  well  settled  rule  in  equity  is,  that  if  the  lender  come 
into  a  court  of  equity  seeking  to  enforce  a  usurious  contract, 
equity  will  repudiate  the  contract.  But  if  the  borrower 
seeks  relief  against  the  usurious  contract,  the  only  terms  upon 
which  the  court  will  interfere  are,  that  he  shall  pay  what  is 
really  and  bona  fide  due.  The  court  acts  upon  the  principle 
that  it  is  against  conscience  that  a  party  should  have  the  re- 
lief which  he  asks  against  the  contract,  and  at  the  same  time 
keep  the  money  which  he  received  upon  it.  If  he  asks  equity, 
he  must  do  equity.  If,  therefore,  a  mortgagee  asks  to  fore- 
close a  usurious  mortgage  against  the  mortgagor,  and  the 
usury  is  established  as  a  defence,  the  court  will  declare  the 
contract  void.  But  if  the  mortgagor  asks  the  court  to  re- 
deem the  mortgaged  premises,  or  to  relieve  the  premises 
from  the  encumbrance  of  the  mortgage,  the  relief  asked  for 
will  be  granted  only  upon  the  payment  of  the  amount  actually 
due  uj)on  the  mortgage  debt. 

Nash,  in  this  case,  was  the  first  mortgagee.  He  did  not 
come  into  court  asking  to  foreclose  his  mortgage.  But  a 
subsequent  encumbrancer,  a  party  holding  the  right  of  re- 
demption, filed  a  bill  to  foreclose  his  mortgage,  and  made  the 
first  mortgngee  and  the  owners  of  the  equity  of  redem{)tion, 
parties.  Now  as  against  the  first  mortgagee,  this  is  not  a 
bill  to  foreclose,  but  to  redeem.  He  was  not  a  necessary,  nor 
a  proper  party  to  the  suit,  if  the  sole  design  was  a  foreclosure 
of  the  equity  of  redemption.  The  real  design  and  effect  of 
making  him  a  party  M'as,  that  his  mortgage  should  be  re- 
deemed, or  the  encumbrance  removed  from  the  premises. 
Technically,  this  is  all  that  could  be  asked  as  against  him. 
And   in   the   Irish  Cc^urt  of  Equity   where,  as  with   us,  the 


560      COURT  OF  ERRORS  AND  APPEALS. 

Hudnit  V.  Nash. 

mortgaged  premises  are  sold  under  a  bill  of  foreclosure,  the 
bill  is  demurrable,  unless  the  complainant  offers  to  redeem. 
Under  our  practice,  doubtless,  the  prior  mortgagees  are  made 
parties  to  avoid  multiplicity  of  suits,  and  so  that  the  premises 
may  be  sold  free  from  encumbrances,  and  most  advantageously 
for  the  interests  of  the  owner  of  the  equity  of  redemption. 
But  still,  in  strict  technicality,  and  in  its  practical  operation, 
the  bill  as  against  the  first  mortgagee,  is  a  bill  for  redemp- 
tion, not  for  foreclosure.  The  mortgage  is  redeemed,  not 
technically,  by  the  payment  of  the  debt  in  advance  by  the 
complainant,  but  the  same  result  is  reached  by  its  being  paid 
or  redeemed  first  in  order  out  of  the  proceeds  of  the  sale. 
By  coming  in  with  his  mortgage,  the  first  mortgagee  assents 
to  the  relief  prayed  for  by  the  complainant.  Beyond  that 
he  asks  no  relief.  As  against  him,  the  relief  sought  for  will 
not  be  granted  unless  by  his  consent,  or  upon  payment  of  the 
amount  actually  due  upon  his  debt. 

But  it  is  said  that  the  appellants,  who  had  acquired  the 
title  of  the  mortgagor,  and  were  the  final  owners  of  the  equity 
of  redemption,  were  also  defendants  in  the  suit,  and  that,  as 
against  them,  the  decree  is  illegal,  because  it  establishes  the 
usurious  mortgage  as  against  their  rights.  But  so  far  as  the 
interests  of  Nash  were  concerned,  they  assented  to,  and  con- 
curred in,  the  prayer  of  the  bill.  They  insisted  that  the 
mortgage  was  usurious  and  void  as  against  their  interests. 
Admitting  that  they  had  a  right  to  raise  the  defence  of  usury 
as  against  their  co-defendant,  their  answer  was  in  the  nature 
of  a  cross-bill,  and  as  such,  in  its  operation,  it  was  a  prayer 
for  relief  against  the  Nash  mortgage.  Standing  in  the  shoes 
of  the  mortgagee,  they  sought  to  relieve  their  title  to  the 
equity  of  redemption  from  the  encumbrance  of  that  mort- 
gage. The  whole  design  of  the  answer,  and  of  all  the  evi- 
dence offered,  was  to  obtain  relief  against  the  Nash  mort- 
gage. Clearly,  the  decree  could  not  have  been  made,  except 
by  the  assent,  expressed  or  implied,  of  all  the  parties  inter- 
ested in  the  equity  of  redemption.  All  the  subsequent  en- 
cumbrancers to  Nash,  and  the  owners  of  the  equity  of  redemp- 
tion, were  before  the  court  upon  final  hearing,  asking  a  final 


MARCH  TERM,  1862.  561 

Hudnit  V.  Nash. 

decree  upon  proof  of  usury  in  the  mortgage  of  Nash,  wlio 
had  been  brought  before  the  court  simply  that  the  premises 
might  be  relieved  from  his  encumbrance.  That  was  the  de- 
sign of  the  bill.  That  must  have  been  the  effect  of  the  decree. 
Under  these  circumstances  the  court  did  what  is  admitted  to 
be  equitable.  They  declared  that  the  holder  of  the  mortgage 
fihoidd  recover  only  the  amount  actually  due. 

It  is  now  urged  that  the  court  should  simply  have  dis- 
missed the  bill  as  ao-ainst  the  first  mortffascee.  That  is 
doubtless  w'hat  would  have  been  done,  had  either  of  the  par- 
ties asked  for  it  at  a  time  when  it  could  have  been  done 
without  prejudice  to  the  rights  of  the  first  mortgagee.  But 
the  parties  had  all  voluntarily  submitted  their  rights  to  the 
final  disposition  of  the  court,  upon  the  pleadings  and  proofs, 
as  they  then  stood.  No  one  asked  the  relief  which  it  is  now 
insisted  should  have  been  afforded.  They  all  asked  a  final 
disposition  of  the  question,  at  the  hands  of  the  court.  It 
was  so  disposed  of,  and  in  accordance  with  the  principles  of 
equity.  Nash  recovers  nothing  more  upon  his  mortgage 
than  he  actually  advanced.  He  took  the  mortgage  for  the 
precise  sura  loaned.  The  usury  consisted  in  taking  a  note 
by  way  of  bonus,  which  has  not  been  paid,  and  is  clearly 
.valueless. 

Under  these  circumstances,  it  is  not  perceived  upon  what 
ground  these  appellants  can  complain.  They  v'oluntarily 
submitted  their  rights  to  the  final  adjudication  of  the  court, 
in  the  shape  in  which  they  were  presented.  They  asked 
equitable  relief,  and  they  obtained  it.  By  a  reversal  of  the 
decree,  Nash  could  not  be  restored  to  the  position  in  which 
he  stood  before  the  decision  in  the  court  below.  His  legal 
rights  have  been  virtually  adjudicated.  There  was  no  diffi- 
culty in  the  appellants  enforcing  their  legal  title  in  a  court 
of  law.  They  might  have  brought  ejectment,  and  held  the 
premises  under  their  title.  They  voluntarily  submitted  to  an 
adjudication  of  their  rights  in  equity.  They  are  here  in 
su[)port  of  a  strictly  legal  right,  seeking  to  enforce  a  penally 
against  the  respondents,  to  retain  the  whole  loan  of  $1500, 


562      COURT  OF  ERRORS  AND  APPEALS. 

Hudnit  V.  Nash. 

aud  not  pay  a  farthing  of  the  debt.  The  evidence  shows 
that  in  every  aspect  their  case  is  destitute  of  all  pretence  of 
equity.  They  never  suifered  the  loss  of  a  dollar  from  the 
usury.  It  never  operated  against  them.  As  they  ask  merely 
to  enforce  the  penalty  of  the  law  against  Nash,  they  cannot 
complain  that  the  strictest  aud  most  technical  rules  should 
be  enforced  against  them.  Clearly,  the  decision  of  the  case 
was  made  upon  the  sharpest  technicality,  upon  the  very 
apices  Utigandi,  and  not  in  accordance  with  the  usual  prac- 
tice of  the  court  when  equitable  interests  are  to  be  protected. 
If  any  equitable  interest  of  these  appellants  had  been  affected, 
it  is  safe  to  assume  that  the  decree  never  would  have  been 
made.  But  as  the  case  stands,  there  is  no  reason  in  equity 
why  the  decree  should  not  have  been  made,  and  certainly 
none  why  it  should  now  be  set  aside  to  the  prejudice  of  the 
respondent. 

I  think  the  decree  should  be  affirmed. 

Decree  affirmed  by  the  following  vote  : 

For  affirmance — The  Chancellor,  Judges  Brown,  El- 
mer, Haines,  Ogden,  Swain,  Van  Dyke,  Vreden- 
BURGH,  Wood — 9. 

For  reversal — Combs,  Cornelison,  Kennedy — 3. 

Cited  in  Vanderveer  v.  Holcomb,  2  C.  E.  Qr.  87-550. 


INDEX. 


depend  upon  the  laws  of  the  state 
wliere  the  contract  was  made.  At- 
waier  v.  Walker,  42 


ABANDONMENT. 

1.  There  may  be  a  consitructlve  aban- 
donment or  separation,  while  thej2.  Where  ihe  contract  upon  its  face  is 
parties   coutiniie  under   the  same      strictly  legal,  it  will   not  be  pre- 
roof.     Anshidz  V.  Anshufz,  162      sumed  that  the  parlies  had  in  con  ■ 

2.  The  conduct  which  will  justify  the  teTuplatiou  an  illegal  stipulation, 
wife  in  abandoning  her  husband  Diercks  v.  Kennedy,  210 
must  be  such  as  would  constitute  a  3.  The  omission  of  one  of  the  lega- 
tees to  sign  the  agreement,  will  not 
invalidate  it  as  against  those  who 
did  sign  it,  they  having  derived  all 
the  benefit  sought  by  the  arrange- 
ment, and  having  incurred  no  ad- 
ditional burden  or  loss.  Woodward's 
adin'r  t.  Woodicard's  ez'ra,  84 

4.  A  court  of  equity  ouglit  not  to  en- 
force the  specific  perforMiance  of  a 
contract  lor  the  purchase  of  land, 
under  a  sale  which  a  comj)etent 
tribunal  had  pronounced  unautho- 
rized and  illegal.  Young's  adm'r 
V.  Rathbone,  224 

5.  Time  is  not  generally  deemed  in 
equity  to  be  of  the  essence  of  the 
contract,  unless  the  parties  have 
expressly  so  treated  it,  or  it  peces- 
sarily  folloAVS  from  the  nature  and 
circumstances  of  the  contract.  Spe- 
cific performance  is  frequently  de- 
creed, where  the  terms  for  the  com- 
pletion of  the  contract  have  not,  in 
point  of  time,  been  strictly  com- 
plied with.  225 

6.  Where  the  time  fixed  for  the  de- 
livery of  a  deed  has  passed,  and  the 
circumstances  have  materially 
changed,  a  vendee  acting  in  good 
faith  will  not  be  compelled  to  ac- 
cept a  deed  against  his  will,  which 
he  was  ready  and  willing  to  acce|)t 
at  the  time  fixed  for  the  perform- 
ance of  the  contract.  lb. 

7.  The  general  principle  is,  that  where 
the  contract  is   incapable  of  being 
enforced    against  one    party,   that    ' 
party  is  eijually  incapable  of  en- 
forcing it  against  the  other.     But 


ground    for   divorce   or    alimony 
Moores  V.  3Ioore$,  275 

ACCOUNT. 

See  Executors  and  Administka- 
Tous,  1,  7,  9,  10,  11,  12. 
Guardian  and  Ward,  1,  2 
Jurisdiction,  4. 
PiiACTiCE,  59  to  G4,  79. 


ACTION. 

See  Practice,  22,  23. 

ADMINISTEATOES. 

See  Executors  and  Administra- 
tors. 

ADULTERY. 

See  Divorce. 
Evidence. 
Pleading,  37,  40. 

AGENT. 

See  Partnership,  4. 

Principal  and  Agent, 
Usury,  3,  4,  5. 

AGREEMENT. 


l.The  validity  of  a  contract  must 


563 


564 


INDEX. 


the  principle  does  not  apply  where 

the  contract,  by  its  termis,  gives  to 
one  party  n  rigliL  to  the  perform- 
ance, wliicli  it  does  not  give  to  tlie 
other.    VuH  Dot-en  v.  Robinson,  256 

8.  Where  the  obligation  to  perform 
rests  upon  one  of  the  parties  onl}', 
equity  will  enforce  the  contract 
with  great  caution.  lb. 

9.  An  agreement  for  the  sale  of  laud 
at  a  price  io  be  ascertained  by  the 
■parties,  is  too  iucoinplete  and  un- 
certain to  be  carried  into  execution 
by  a  court  of  equity.  But  where 
the  contract  is,  that  land  shall  be 
conveyed  "at  a  fair  price,"  or  "  at 
a  fair  valuation,"  the  court  will  di- 
rect the  valuation  to  be  made  by  a 
master,  and  will  enforce  the  execu- 
tion of  the  conlract.  lb. 

10.  The  true  principle  seems  to  be, 
that  whenever  the  price  to  be  paid 
can  be  ascertained  in  consistency 
with  the  terms  of  the  contract,  per- 
formance will  be  enforced.  But 
the  court  will  not  make  a  contract 
for  the  parties,  nor  adopt  a  mode  of 
ascertaining  the  price  not  in  ac- 
cordance with  the  spirit  of  the 
agreemevit.  lb. 

11.  A  mere  personal  contract,  not  run- 
ning with  the  land,  nor  binding 
the  alienee  at  law,  will  be  enforced 
against  the  alienee  in  equity,  only 
where  he  is  chargeable  with  notice 
of  the  contract.  _  lb 

12.  Wliere  the  covenantee  in  a  con- 
tract for  the  conveyance  of  land, 
l)ermits  a  purchaser  to  acquire  title, 
take  possession  of  the  premises,  and 
pay  the  purchase  money,  without 
an  intimation  of  his  claim  under 
the  covenant,  or  of  his  willingness 
to  accept  the  title,  he  has  no  claim 
to  relief  in  equity.  257 

13.  Equity  will  relieve  against  a  con- 
tract made  under  a  mistake,  or  ig- 
norance of  a  material  fact ;  not  only 
where  there  has  been  a  concealment 
of  facts  by  one  party,  but  also  in 
cases  of  mutual  mistake  or  igno 
ranee  of  facts.     J^icholson  v.  Jane- 


u-aij, 


285 


14.  To  constitute  a  fraud  or  mistake, 
for  which  equity  will  relieve  against 
a  contract,  it  is  essential   that  the 

.  fact  misrepresented  or  concealed  be 
malerkd.  iL  must  either  afi'ect  the 
substance  of  the  contract,  or  the 
■value  of  the  thing  bargained  for  j 


or  be  such  as  induces  the  party  ag« 
grieved  to  pay  more,  or  accept  less, 
for  the  thing  bargained  for,  than 
its  real  value.  lb. 

15.  Equity  will  not  grantrelief  against 
a  contract  on  the  grotmd  of  mis- 
take, when  the  mistaken  fact  did 
not  operate  as  an  inducement  to 
enter  into  the  contract.  lb. 

16.  An  engMgement  by  a  contracting 
party  that  he  will  not  do  any  act 
to  the  prejudice  of  the  other  con- 
tracting party,  without  his  consent, 
is,  in  eii'ect,  identical  with  an  abso- 
lute and  unqualified  engagement 
not  to  do  the  act.  Delaware  (wd 
Earitan  Canal  Co.  v.  liarilan  and 
Delaware  Bay  Co.,  322 

17.  Parties  cannot  effect  by  combina- 
tion what  neither  can  do  lawfully. 
Nor  can  thev  effect  by  the  agency 
of  others,  what  they  may  not  do 
themselves.  lb. 

See  Corporations,  1,  2,  3,  5,  13. 
Mistake. 

Mortgage,  8,  9,  10. 
Sale  op  Land,  8,  9. 
Spec.  Pebf.,  1,  3,  6,  7,  10. 


ALIMONY. 

l.This  court  has  or)'_7i'«a/ jurisdiction 
in  the  matter  of  alimony,  ordy 
Avhere  the  husband  without  any 
justifiable  cause  abandons  his  wife, 
or  separates  himself  from  her,  cr 
refuses  and  neglects  to  maintain  and 
provide  for  her.  Anshutz  v.  An- 
hvtz,  162 

2.  The  abandonment  or  separation  on 
the  part  of  the  husband,  as  well  as 
the  refusal  to  support  the  wife, 
must  be  charged  in  the  bill  and  be 
sustained  by  the  proof.  .  lb. 

3.  While  the  parties  continue  to  live 
together,  no  measure  of  unkind 
or  harsh  treatment,  which  will  not 
constitute  valid  ground  for  a  di- 
vorce, will  entitle  the  wife  to  ali- 
mony, lb 

4.  A  bill  for  alimony  independent  of 
the  statute,  except  as  incidental  to 
some  other  relief  which  may  give 
the  court  jurisdiction,  will  not  be 
entertained.  lb 

See  Practice,  38,  39,  40.  41. 


INDEX. 


565 


AMENDMENT. 

See  Pleading,  42. 
Practice,  33. 


ANSWER. 

See  Pleading,  5, 7, 12, 20  to  25, 35, 38, 
Practice,  21,  77. 
Spec.  Perf.,  10. 


APPEAL. 

See  Practice,  72. 

ASSIGNEE  AND  ASSIGNMENT 

See  Creditor  and  Debtor,  2. 
Mortgage,  3,  4. 


ASSIGNMENT  FOR  BENEFIT 
OF  CREDITORS  AND  FRAUD- 
ULENT TRUSTS. 

An  insolvent  debtor  having  been  ar- 
rested in  Virginia,  and  being  in 
custody  by  virtue  of  a  capias  ad 
satisfaciendum,  petitioned  for  liis 
discharge  under  tlie  insolvent  laws 
of  tiiat  state,  and  having  taken  the 
oatli  of  insolvency,  and  tendered 
and  subscribed  a  schedule  of  all 
his  property,  real  and  personal, 
did  further,  in  pursuance  of  the 
requirements  of  the  insolvent  laws 
of  said  state,  and  in  order  to  his 
discharge  as  an  insolvent,  execute 
anil  deliver  to  tliesherill',  by  whom 
he  was  held  in  custody,  a  deed  for 
certain  real  estate  in  New  Jersey, 
described  in  said  sciiedule.  Upon 
a  bill  filed  in  this  court  to  compel 
tiie  execution  of  tiie  trusts  upon 
which  tlie  said  deed  was  executed, 
Held— 

1.  That  a  general  assignment  by  a 
debtor,  of  all  his  real  and  personal 
property,  under  the  insolvent  laws 
of  Virginia  or  of  any  other  stale, 
can  pass  no  title  to  real  estate  in 
New  Jersey.    Ilutcheson  v.  Peshine, 

167 

2.  The  deed  to  the  sheriff,  though  ab- 
solute upon  its  face,  was  merely 
ancillary  to  the  general  assign- 
ment,   burdened    with    the    same 


trusts,  and  designed  to  carry  the 
assignment  into  eflect.  Independ- 
ei  t  of  those  trusts,  and  of  the  pro- 
visions of  the  statutes  of  insol- 
vency, the  deed  is  without  consid- 
eration, and  void  lb. 

3.  The  deed  is  not  merely  fraudulent 
as  against  subsequent  creditors, 
but  it  is  illegal  and  inoperative  as 
a  transfer  of  title  to  real  estate, 
and  the  trusts  under  it  v.'ill  neither 
be  recognized  nor  executed. by  the 
courts  of  this  state.  lb. 

4.  This  court  will  not  administer 
trust  funds  created  under  the  laws 
of  another  state,  and  growing  out 
of  the  sale  of  real  estate  situate  in 
New  Jersey,  in  direct  conflict  with 
the  laws  of  this  state,  to  the  pieju- 
dice  of  creditors  residing  liere.  lb. 


ATTACHMENT. 


See  Practice,  19. 
Sale  of  Land, 


1,  2,  3. 


AWARD. 

See  Pleading,  11. 

BILL  QUIA  TIMET. 
See  Practice,  47. 

BONA  FIDE  PURCHASER. 

See  Purchaser,  1,  4. 
Sale  of  Land,  2. 


BOND. 

,  In  an  action  at  law  upon  a  penal 
bond,  with  condition  for  tiie  pay- 
ment of  money  only,  the  |>laiutiff 
is  entitled  to  recover  tiie  full 
amount  of  the  penalty  a-i  a  debt, 
and  the  excess  of  interest  beyond 
the  penalty  in  the  shape  of  dam- 
ages for  the  detention  of  t!ie  debt. 
Long's  adm'i-  v.  Long,  59 

Upon  a  bill  in  eqnitij  for  the  re- 
covery of  a  bond  debt,  either  upun 
the  bond  itself,  or  u[)on  a  mori- 
gage  given  to  secure  tlie  bond,  tiie 
obligee  may  recover  the/uU  a.itonut 


566 


INDEX. 


0/  jyrincipal  and  interest  due  upon 
the  bond,  though  it  exceed  the 
amount  of  the  penalty.  Jb. 

3.  Though  the  delivery  of  a  bill  or 
iiote,  either  of  the  debtor  or  of  a 
third  party,  is  not  payment  of  a 
precedent  debt,  but  merely  sus- 
pends the  remedy,  yet  if  the  liolder 
be  guilty  of  laches,  it  operates  as  a 
complete  satisfaction.  Shipman  v. 
Cook,  251 

4.  Where  the  note  of  a  third  party  is 
endorsed  by  a  mortgagor  to  the 
mortgagee,  and  is  accepted  by  hini 
as  a  conditional  payment  upon  the 
bond,  the  mortgagor  is  entiled,  «s 
endorser,  to  a  notice  of  protest  or 
dishonor.  If  the  holder  of  the  note 
fail  to  give  such  notice,  the  mort- 
gagor is  discharged  not  only  from 
liability  as  endorser,  but  also  from 
liability  pro  tanto  upon  the  bond. 

lb. 

5.  If  such  a  note  be  accepted  as  abso- 
lute payment  on  the  bond,  and  the 
payment  of  tiie  note  be  guaranteed 
by  the  mortgagor,  the  guaranty 
will  not  restore  the  obligation. 
The  mortgagor  would  be  liable 
on  his  contract  of  guaranty,  but 
his  indebtedness  upon  the  bond  and 
mortgage  would  not  be  revived.  76. 

See  Husband  and  Wife,  10,  11,  19. 


BURTHEN  OF  PROOF. 
See  Practice,  38. 

CESTUI  QUE  TRUST. 

See  Executors  and  Administra- 
tors, 2. 
Pleading,  17,  18. 
Practice,  32. 
Will,  10. 


CHARTER. 

I.  The  making  and  filing  of  the  sur- 
vey required  by  the  5th  section  of 
the  act  incorporating  the  "  Morris 
Canal  and  Banking  Company," 
{Pamph.  L.,  1824,_  p.  160,)  is  a 
necessary  prerequisite  to  the  taking 


of  any  lands  under  the  powers 
given  by  the  charter.  Morris  Canal 
and  Banking  Co.  v.  Central  Mail- 
road  Co.,  419 

,  As  a  rule  of  construction,  the  legis- 
lature ought  to  be  considered  as 
intending  to  grant,  by  a  charter  of 
incorporation,  such  i>owers  only  as 
are  neces-iary  or  useful  to  the  end 
or  object  which  tiiey  had  in  vit-w 
in  creating  the  corporation.  They 
ought  not  to  be  understood  as 
granting  anything  more,  unless  the 
intention  to  do  so  is  plainly  ex- 
pressed, or  beyond  a  doubt.         Jb. 

,  In  public  grants  the  grantee  can 
take  nothing  not  clearly  given  him 
by  the  grant.  In  cases  of  doubt, 
the  grant  is  construed  in  favor  of 
the  state,  and  most  strongly  against 
the  grantee.  lb. 

.The  third  section  of  the  "act  to 
incorporate  the  Associates  of  the 
Jersey  Company,"  Pamph.  L., 
1804,  p.  370,)  enacts  as  follows: 
"That  tlie  said  Associates  shall 
have  the  privilege  of  erecting  or 
building  any  docks,  wharves,  and 
piers,  opposite  to,  and  adjoining 
the  said  premises  in  Hudson  river, 
and  the  bays  thereof,  as  far  as  tiiey 
may  deem  it  necessary  for  the  im- 
provement of  the  said  premises,  or 
the  benefit  of  commerce,  and  to 
appropriate  tiie  same  to  their  own 
use."  Held,  tiiat  this  section  merely 
gave  the  Associates  a  privilege  or 
license  to  build  docks,  wharves, 
and  piers,  in  the  waters  of  tiie 
Hudson  river  and  tiie  bays  afore- 
said, in  the  manner  therein  men- 
tioned, and  when  so  built,  to  ap- 
propriate them  to  their  own  use, 
and  conferred  upon  them  no  power 
to  transfer  or  convey  such  privi- 
lege or  license  to  any  other  corpo- 
ration. Held  further,  that  the 
land  not  so  occupied  and  built 
upon  was  not  granted  to  the  Asso- 
ciates, and  that  the  same  and  all 
rights  in  and  over  it  remain  in  the 
state  as  before.  lb. 

See  Corporations,  1,  9,  10. 


CONTRACT. 

See  Agreement. 


INDEX. 


567 


COKPORATIONS. 

.  Wliere,  at  the  time  of  the  grant  of 
a  cliarter  to  a  corporation,  there  is 
a  general  Law  of  the  state,  that  the 
charter  of  every  corporation  grant 
ed  by  the  legislature  shall  be  sub 
ject  to  alteration,  suspension  or 
repeal,  in  the  discretion  of  tl>e 
legislature,  the  legislature,  in  grant 
ing  such  charter,  must  be  deemed 
to  liave  reserved  to  themselves  the 
right  of  altering,  suspending,  or 
repealing  the  same,  whenever,  in 
their  discretion,  the  public  good 
may  require  it,  as  fully  as  if  the 
reservatum  were  inserted  in  the 
charter.  And  all  contracts,  expres 
or  implied,  resulting  from  the  act 
of  incorporation  and  its  acceptance 
by  the  stockholders,  must  be  deem- 
ed to  have  been  entered  into  by 
both  parties,  subject  to  that  reser- 
vation. Slory  V.  Jersey  City  and 
Bergen  Point  Plank  Road  Co.,     13 

.  Whatever  limitation  may  exist  to 
the  reserved  right  of  the  legisla- 
ture to  alter  or  repeal  a  contract, 
such  reservation  is  in  itself  valid, 
and  this  court  ought  not,  uppn  a 
motion  for  a  preliminary  injunc- 
tion, to  pronounce  any  alteration, 
suspension,  or  repeal  of  the  charter, 
to  be  unconstitutional  or  illegal. 
Much  less  sliould  this  court  make 
such  declaration  in  advance  of  any 
actual  legislation.  14 

Under  the  provisions  of  the  charter 
of  incorporation  of  the  Jersey  City 
and  Bergen  Point  Plank  Road  Com- 
j)any,  Pampk.  Laws,  1850,  p.  255, 
and  the  sn])plemenls  thereto.  Laws, 
1851,  p.  288,  and  1860,  p.  392,  and 
of  the  charter  of  incorporation  of 
the  Jersey  City  ami  Bergen  Rail- 
road Company,  Lnu's,  1859,  p.  411, 
and  the  supplement  thereto,  Laivs,\ 
1860,  p.  393—  I 

Held,  that  the  occupation  of  a  part  6 
of  the  ancient  highway  on  which 
(he  plank  road  is  constructed,  by 
the  railway,  with  the  consent  of 
the  plank  road   company,  without 
the   personal  consent  of   a  stock- 
liolder,   the  p'ank   road  company 
having   been    authorized    by    the 
legislature   to  lay  rails  upon   their 
road,  is  no  violation  of  the  rights,? 
of  such  stockholder. 
Held  also,  that  the  sale  by  the  plauki 


road  company  of  the  whole  or  a 
part  of  their  road  to  the  railroad 
company,  without  the  personal 
consent  of  a  stockholder,  is  not 
such  an  ini'ringemeiit  (if  any)  of 
his  rights  as  this  court  will  inter- 
fere to  restrain  by  injunction. 
Held  further,  that  a  ch.ange  of  the 
route  of  the  plank  road  by  author- 
ity of  the  legislature,  at  the  in- 
stance of  the  plank  road  company, 
is  not  a  fundamental  change  of  the 
objects  of  the  company,  or  a  fun- 
damental alteration  of  the  struc- 
ture thereof,  which  equity  will 
restrain  at  the  instance  of  a  stock- 
holder, lb. 

.  A  member  or  director  of  a  corpo- 
ration may  make  contracts  with  it, 
like  any  other  individual,  and  when 
tiie  contract  is  made,  the  tli rector 
stands,  as  to  the  contract,  in  the 
relation  of  a  stranger  to  the  cor)>o- 
ration.     St  ration  v.  Allen,  229 

.  Corporations  that  have  the  power 
to  borrow  money,  have  also  the 
necessary  power,  as  well  as  the 
legal  right,  to  give  obligations  for 
its  repayment  in  any  form  not  ex- 
pressly forbidden  by  law.  The  fact 
that  the  security  was  given,  and 
the  judgment  confes-ed  to  a  direc- 
tor,   cannot    destroy    its    validity. 

lb. 

,  The  phraseology  of  the  clause 
under  which  the  exclusive  privi- 
leges are  claimed  by  the  comphiin- 
ants,  "it  shall  not  be  lawful,  &c.," 
{Pamjjh.  L.,  1832,  p. SO,)  is  the  form 
in  which  the  faith  of  the  state  is 
usually  pledged,  and  in  which  con- 
tracts with  corporations,  touching 
the  exercise  of  exclusive  franchises 
under  legislative  authority,  are 
entered  into.  It  is  none  the  less 
obligatory  that  it  is  not  in  form  a 
contract.  Del.  &  Pir.  Canal  Co. 
V.  Bar.  &  Del.  Bay  0>.,  _  _   321 

The  legislature  cannot  divest  itself 
or  its  successors,  of  its  sovereignty, 
or  extinguish  the  trusts  committed 
to  its  custody  for  the  pul)lic  wel- 
fare. It  not  only  may,  but  must 
determine  in  what  manner  that 
sovereignty  shall  be  exercised,  and 
how  those  trusts  shall  be  executed. 

lb. 

.  By  the  grant  of  exclusive  privi- 
legeR  to  the  joint  companies,  the 
legislature  in  no  proper  sense  dero- 


568 


INDEX. 


gated  from  the  power  of  subsequent 
legislalnres  lo  provide  lughways. 
The  legishiture  luive  the  same  con- 
trol over  tlieir  friincliises  and  pro- 
perty as  over  those  of  any  other 
citizens,  and  tliey  may  be  taken 
and  condemned  lor  public  use  upon 
making-  just  compensation.  lb. 

S.  If  a  cor|)orati()a  goes  beyond  the 
powers  with  which  the  legislature 
has  invested  them,  and  in  a  mista- 
ken exercise  of  those  jDOwers  inter- 
feres with  tiie  rights  or  property  of 
others,  equity  is  bound  to  interfere 
by  injunction  if  the  exigency  of  the 
case  require  it.  Whether  those 
rights  are  invaded  by  a  mistaken 
or  fraudulent  exercise  of  power  is 
immaterial.  322 

S.  The  legislature  cannot  be  presumed 
by  a  charter  to  intend  or  contem- 
jdate  any  grant  inconsistent  with, 
or  that  would  operate  as  an  inva- 
sion of,  a  grant  already  made.    lb 

10.  The  clause  in  the  charter  of  incor- 
poration, rendering  the  consent  of 
the  companies  necessary  to  legalize 
the  construction  of  a  competing 
road,  cannot  afl'ect  the  validity  of 
the  law  as  an  act  of  legislation 
Their  assent  is  no  part  of  legisla- 
tion. It  does  not  create  the  law, 
but  merely  avoids  tlie  constitution- 
al objection  to  its  validity.  lb. 

11.  By  the  act  of  1854  {Pamph.  L. 
388,)  supplementary  to  the  act  en- 
titled "an  act  relative  to  the  Dela- 
ware and  Ilaritan  Canal  and  Cam- 
den and  Amboy  Railroad  and 
Transportation  Companies,"  the 
true  intent  and  meaning  of  the 
said  last  mentioned  act,  are  de- 
chired  to  be  "fully  and  efl'ectually 
to  protect  until  the  first  day  of 
January,  1801),  tiie  business  of  the 
said  joint  companies  from  railroad 
competition  between  the  cities  of 
New  York  and  Philadelphia." 
Held,  the  grant  of  this  exclusive 
privilege  operates  only  to  protect 
the  through  business  from  cily  to 
city,  and  not  between  intermediate 
places  and  over  any  and  every  part 
of  the  route  between  the  said  cities. 
Tiie  franchise  is  exclusive  only  in 
regard  to  passengers  and  merchan- 
dise transported  over  the  entire 
route.  Tb. 

12.  But  even  if  the  exclusive  privi- 
lege also  extend  to  way  business, 


still  a  competing  route  for  local 
business  is  not  a  nuisance,  unless 
so  near  the  route  of  the  complain- 
ant's road  as  materially  to  aflect  or 
take  away  its  custom.  76. 

13.  It  is  a  well  settled  rule  of  con- 
struction that  public  grants  are  to 
be  construed  strictly ;  and  in  all 
cases  of  grants  of  franchises  by 
the  public  to  a  private  corporation, 
the  established  rule  of  construction 
is,  that  any  ambiguity  in  the  terras* 
of  the  contract  must  operate  against 
the  corporation,  in  favor  of  the 
public.  The  corporation  take  no- 
thing that  is  not  clearly  given  by 
the  act.  Jb. 

See  Charter. 


COSTS. 

See  Practice,  3,  4,  7,  24,  65,  71. 
Sale  or  Land,  3. 
Wiix,  4. 


CREDITOE  AND  DEBTOR. 

1.  Where  a  creditor  comes  into  equity 
to  remove  fraudulent  encumbrances 
or  conveyances  out  of  the  way  of 
his  execution  at  law,  the  effect  of  the 
decree  is  simply  to  declare  the 
creditor's  claim  an  encumbrance 
upon  the  property,  in  preference 
to  the  fraudulent  encumbrance  or 
alienation.     Smith  v.  Vreeland,  199 

2.  AVhere  a  debtor  wilfully  admits  a 
greater  liability  than  actually 
exists,  or  conceals  tiie  equity  or 
defence  on  which  he  subsequently 
relies,  such  concealment  or  admis- 
sion will  be  absolutely  conclusive 
in  favor  of  an  assignee,  if  acted 
on  by  him  in  accepting  the  assign 
ment.     Diercks  v.  Kennedy,        210 

See  Assignment  for  Benefit  of 
Creditors  and  Fraudulent 
Trusts. 

Fraud,  4. 

Husband  and  Wife,  1,  2,  4, 6,  7. 

Insolvent  Corporation,  7,  8. 

MAIiRlED  WOMENT,  10. 

Partnership,  C. 
Practice,  15  to  19,  67  to  69. 
Pleading,  30,  31,  34. 
Trust  and  Trustee,  2. 


INDEX. 


509 


CROSS-BILL. 

See  Pleading,  21,  22. 
Pkactice,  90. 


DECREE. 

See  Practice. 

PuiiCHASER,  9. 


DECREE    OF    DISTRIBUTION. 

See  Practice,  70  to  82. 

DEED. 

l.The  familiar  principle  of  the  com- 
mon law,  that  in  tlie  creation  of  an 
e.state  by  deed  the  word  ''  heirs"  is 
necessary  to  pass  the  fee,  has  not 
been  altered  in  this  state  i)y  sta 
tute,  nor  has  it  been  modified  or 
relaxed  by  judicial  construction. 
No  synonym  can  supply  the  omis- 
sion of  the  wortl  "  heirs,"  nor  can 
tlie  legal  construction  of  the  grant 
be  allected  by  the  intention  of  the 
parties.     Kearney  v.  Macomb,    189 

2.  An  instrument  conveying  lands  ab- 
solutely, not  as  security  for  money 
nor  to  be  held  in  trust  for  its  repay- 
ment, but  in  lieu,  of  it,  is  a  deed 
No  subsequent  event  can  convert 
it  into  a  mortgage.  lb. 

3.  A  husband  and  wife,  by  deed  of 
trust,  conveyed  the  legal  title  to 
certain  real  estate  to  tlie  trustee 
for  life,  and  by  the  same  deed,  in 
terms,  constituted  tlie  trustee  attor- 
ney irrevocable,  in  the  name  of  the 
grantors,  or  either  of  them,  in  con- 
jimclion  with  the  grantors,  to  con 
vey  the  land. 

Held,  tiiat  as  respects  the  wife,  the 
power  as  such  was  a  nullity.  She 
could  not  convey  by  letter  of  at- 
torney. 

Also,  that  it  can  only  serve  as  evi- 
dence of  an  intention  on  tiie  part  of 
the  grantors,  to  confer  upou  the 
trustee  a  power  of  sale. 
Further,  tiie  trustee  has  no  power 
of  sale  under  the  deed.  lb. 

i.  Where  the  defendant  claims  title 
through  a  deed  which  contains  the 
covenant  sought  to  be  enforced,  he 


is  chargeable  with  constructive  no- 
tice of  the  covenant.  Van  Doren 
v.  liobiuiion,  256 

5.  Notice  of  a  deed  is  notice  of  its 
contents,  :ind  where  a  purchaser 
cannot  make  out  a  title  but  by  a 
deed  wliich  leads  him  to  anotlier 
fact,  Jie  will  be  deemed  to  have 
knowledge  of  that  fact.  257 

6.  Construciive  notice  is  knowledge 
imputed  on  presumi)tiou,  too  strong 
to  be  rebutted,  that  the  knowledge 
must  have  been  communicated,  lb. 

7.  Where  it  appears  that  the  adjunct 
of  quantity  in  a  deed  is  used  as 
f/esc;'('/)<to;i  merely,  and  not  as  indi- 
cating the  precise  contents  of  the 
land  conveyed,  a  mere  deficiency 
in  tiie  quantity  is  not  of  itself 
evidence  of  a  fraudulent  intent. 
Weart  v.  Bose,  ■  290 

8.  Where  it  appears  by  definite  boun- 
daries, or  by  words  of  qualification, 
that  the  statement  of  the  quantity 
of  acres  in  a  deed  is  mere  matter 
of  description,  and  not  of  the  es- 
sence of  the  contract,  the  buyer 
takes  the  risk  of  the  quantity,  if 
there  be  no  intermixture  of  fraud 
in  the  case.  Jb. 

9.  Where  land  is  sold  by  certain  boun- 
daries, or  for  so  much  for  the  entire 
parcel,  any  surplus  over  the  quan- 
tity given  belongs  to  the  vendee, 
and  the  price  cannot  be  increased 
or  diminished  on  account  of  dis- 
agreement in  measure  or  quantity. 

76. 

10.  Where  the  vendor  agrees  to  con- 
vey a  farm  in  gross,  "  containing 
about  one  hundred  and  fil'teen  acres 
of  land,"  and  the  deed  executed  iu 
ptn-suance  of  the  agreement  de- 
scribes the  land  by  boundaries,  and 
adds,  "containing  about  one  hun- 
dred and  fifteen  acres  of  land,"  a 
dedciencyof  G. 12  acres  will  not  cm- 
title  the  purchaser  to  an  aba'emeiit 
of  the  purchase  money.  291 

See  Agreement,  6. 

Husband  and  Wife,  7. 
Sheriff's  Sale,  8. 


DEMURRER. 

See  Pleading,  3,  10,  13,  14,  15,  30, 
31,  30,  39,  40,  41,  42. 


570 


INDEX. 


DESEETION. 

The  mere  separation  of  Imsband  and 
wile  does  not  constitute  desertion 
within  the  meaning  of  the  statnte. 
To  constitute  desertion,  the  wife 
must  absent  herself  from  lier  liu-- 
band  of  her  own  accord,  without 
his  consent  and  against  his  will. 
Moorcs  V.  Moores,  275 

See  Divorce,  3. 
DISCOVERY. 

See  Executors  and  Administra- 
tors, 7. 
Pleading,  21,  31,  40. 
Sheriff's  Sale,  7. 

DISTRIBUTIVE  SHAEE. 

I.  A  bill  in  equity  by  the  next  of 
kin,  for  the  distributive  share  of  an 
estate  in  the  hands  of  an  adminis- 
trator, will  be  sustained,  where  no 
decree  for  distribution  has  been 
made.     Frey  v.  Deniarest,  236 

2  The  statutory  remedy  by  suit  at 
law  for  the  recovery  yf  a  legacy  or 
a  distributive  share  of  an  estate  is 
cumulative,  and  was  not  designed 
to  limit  or  qualify  the  ancient  ju- 
risdiction of  the  court  of  equity 
over  the  subject.  lb. 

DIVORCE. 

1.  A  citizen  of  another  state,  bringing 
his  eflects  into  this,  to  establish  a 
residence  here,  witii  the  manifest 
intent  of  procuring  a  divorce,  and 
immediately  commencing  a  suit  for 
that  purpose,  is  not  an  inhabitant 
or  a  resident  of  this  state,  within 

■  the  meaning  of  "  the  act  concern- 
ing divorces."  {Nix.  Dig.  §  1.)  Win- 
ship  v.  Wim^hiv,  107 

2.  Under  such  circumstances,  this 
court  will  not  maintain  jurisdic- 
tion of  a  suit  for  divorce,  tiiough 
the  charge  of  adultery  be  clearly 
proved  against  the  defendant.    Ih. 

3.  A  bill  will  not  lie  for  divorce  on 
the  ground  of  desertion,  where  the 
parties  are  living  apart  imder  ar- 
ticles of  separation  or  by  mutual 
agreement,  and   where   the  party 


seeking  it  has  not  expressed  a  de- 
sire to  terminate  the  agreement. 
Hooves  v.  Moores,  27(j 

See  Pleading,  23,  37. 

DRUNKENNESS. 

See  Practice,  35  to  37. 

ELECTION. 

l.The  heir-at-law  of  the  testator, 
claiming  a  legacy  tmder  the  will, 
and  also  claiming  real  estate  as 
heir-at-law  against  the  will,  the 
will  being  inoperative  as  to  real 
estate  by  reason  of  a  defective  ex- 
ecution, the  heir  will  not  be  put  to 
his  election,  but  will  take  both  the 
legacy  and  the  land.  In  such  case 
the  heir  will  not  be  required  to 
give  up  the  legacy,  unless  the  leg- 
acy was  bequeathed  upon  an  ex- 
press condition  to  give  up  the  real 
estate.     Kearney  v.  Macomb,      189 

2.  Where  a  suit  is  pending  for  the 
same  cause  in  a  court  of  law,  all 
that  the  defendant  can  ask,  is  an 
order  putting  the  complainant  to 
his  election,  whether  he  will  pro- 
ceed at  law  or  in  equity.  Way  v. 
Bragaw,  213 

3.  The  complainant  will  not  be  put 
to  his  election,  unless  the  suit  at 
law  is  for  the  same  cause,  and  the 
remedy  afforded  co-extensive  and 
equally  benehcial  with  the  remedy 
in  equity.  lb. 

See  Will,  10. 


EQUITY    OF    REDEMPTION. 
See  Practice,  90,  91,  92. 

ESTOPPEL. 

See  Purchaser,  11. 

EVIDENCE. 

l.The  evidence  of  an  alleged  para- 
mour, being  particeps  crirainis,  is 
but  weak.     Eut   neither   his   evi- 


INDEX. 


deuce,  nor  that  of  the  woman 
charged  witli  adultery,  is  to  be  re 
jected  on  the  assumption  tliat  tliey 
are  guilty.  JJcrckmans  v.  Berck- 
muns,  122 

2.  Express  testimony  cannot  be  re- 
jected on  the  sole  ground  of  its  im 
probability.  Its  ■impossibility  a,\one 
can  discredit  the  witness.  lb. 

3.  A  witness  must  state  facts,  not 
inferences,  and  the  court  can  draw 
no  inferences,  whicli  the  facts  as 
proved  do  not  justify.  lb. 

4.  The  testimony  of  one  witness  un 
corroborated,  unsupported,  and  in 
its  details  improbable,  is  not  suffi- 
cient to  estal)li.sh  the  charge  of 
adultery,  against  the  full  and  ex- 
plicit counier  testimony  of  the 
per-son  accused  and  her  parliceps 
criminis.  lb. 

6.  It  is  not  necessary  that  the  offence 
should  be  proved  in  time  and  place 
as  charged  in  tlie  bill.  The  mine 
of  the  court  must  be  satisfied  that 
actual  adultery  has  been  commit 
ted,  but  if  the  circumstances  estab 
lish  the  fact  oi  general  cohabitation 
it  is  enough,  although  the  court 
may  be  unal)le  to  decide  at  what 
time  the  oflence  was  committed.  lb. 

6.  Parol  evidence  of  the  declaration-: 
of  aparticeps  criminis,  even  thougii 
he  has  confessed  his  guilt,  is  not 
competent  evidence  against  tlie 
party  ciiarged  with  adultery.      lb. 

7.  To  establish  the  existence  of  adul- 
tery, the  circumstances  must  be 
such  as  would  lead  the  guarded 
discretion  of  a  reasonable  and  just 
man  to  that  conclusion.  It  mu'^t 
not  be  a  rash  and  intemperate 
judgment,  moving  upon  appear- 
ances that  are  equally  capable  of 
two  interpretations.  lb. 

8.  The  facts  i)roven  must  be  such  as 
cannot  be  reconciled  with  proba- 
bility and  the  innocence  of  the 
parties.  lb. 

9.  Mere  imprudence,  indiscretion,  or 
folly,  is  not  conclusive  evidence  of 
guilt.  The  mind  of  the  court  must 
be  satisfied  that  there  was  an  inti- 
macy between  the  parties  entirely 
inconsistent  with  the  duty  which  a 
virtuous  wife  owes  to  herself  and 


to  her  husband. 


lb. 


involving  guilt  and  the  other  con- 
sistent with  innocence,  the  rules  of 
evidence  as  well  as  the  dictates  of 
justice  require  tiiat  the  interpreta- 
tion sliould  be  favorable  to  inno- 
cence. 76. 

11.  In  the  investigation  of  a  wife's 
guilt,  the  conduct  of  the  husband 
is  always  regarded  as  a  most  sig- 
nificant circumstance.  So  long  as 
there  is  reasonable  doubt  of  her 
guilt,  or  a  plausible  ground  for  a 
hope  of  her  innocence,  the  hus- 
band's forbearance  is  both  excusa- 
ble and  laudable.  But  when  the 
husband  holds  in  his  hands  what 
he  claims  to  be  satisfactory  proof 
of  his  wife's  guilt,  hi.s  delay  to 
prosecute  is  strong  evidence  in  the 
wife's  favor.  Jh. 

12.  To  prove  adultery  by  circumstan- 
tial evidence,  two  points  are  to  be 
established :  the  opportunity  for 
the  crime,  and  the  will  to  commit 
it.  Where  both  are  established,  the 
court  will  infer  the  gnilt.  J 23 

13.  Parol  evidence,  to  raise  an  ex- 
press trust  upon  the  terms  of  a 
written  instrument,  is  received 
with  great  caution,  and  must  be 
very  clear  to  warrant  a  court  in 
establishing  the  trust.  Sayre  v. 
Fredericks,  205 

14.  Tlie  mere  proof  of  the  loss  or  de- 
struction of  an  instrument  does 
not,  as  a  matter  of  course,  let  in 
the  party  to  give  .secondary  evi- 
dence of  its  contents.  He  who 
voluntarily,  without  mistake  or 
accident,  destroys  primary  evi- 
dence, thereby  deprives  himself  of 
the  production  and  use  of  second- 
ary evidence.      Wyckoffw.  Wyckoff, 

401 

15.  If  the  destruction  of  an  instru- 
ment was  accidental,  or  if  it 
occurred  without  the  agency  or 
assent  of  the  party  oflering  it, 
secondary  evidence  is  admissible. 
But  if  it  was  voluntarily  destroyed 
by  tlie  party,  secondary  evidence 
of  its  contents  will  not  be  admit- 
ted, until  it  be  shown  that  it  was 
done  under  a  mistake,  and  until 
every  inference  of  a  fraudulent 
design  is  repelled.  lb. 


10.  When  the  conduct  of  a  party  ad- 
mits of  two  interpretations  equally 
consistent  with  probability,  the  one 


!1G.  Where  the  evidence  in  a  cause 
fails  to  prove  that  a  transfer  of 
jiromissory  notes  was  procured  by 
fraud   or   false   accusation,  or    by 


572 


INDEX. 


any  comlunatlon  or  conspiracy,  it 
seems,  nevertheless,  that  tlie  trans- 
fer may  be  held  invalid  on  the 
ground  of  surprise,  coupled  with 
evidence  of  mental  weakness. 
Hougland  v.  Titus,  _       44 

17.  On  this  ground  nnder  the  circum- 
stances a  re-hearing  was  ordered. 

lb. 
Sec  Pleading,  25. 

Practice,  57  to  59,  64,  72. 

Sale  of  Land,  4. 


EXCEPTIONS. 

See  Executors  and  Administra- 
tors, 12. 
Practice,  21,  54. 


EXECUTION. 

See  Partnership,  5. 
Practice,  lb,  17. 
Sheriff's  Sale,  1 


EXECUTOKS    AND    ADMINIS- 
TKATOKS. 

1.  Where  the  executors  of  an  execu- 
tor have  received  and  inventoried 
as  part  of  the  estate  of  their  testa- 
tor, a  trust  fund  held  by  liim  at 
his  death  in  tlie  ciiaracter  of  execu- 
tor, and  not  as  trustee,  and  have 
settled  their  final  account  jointly, 
they  are  jointly  chargeable  as 
executors,  with  the  balance  thus 
found  to  be  in  their  liands.  Sehevc.k\ 
V.  Schenck's  ex' rs,  174 

2.  Tlie  rule  appears  to  be,  that  if  a 
jjart  of  the  assets  has  been  clearly 
Bet  apart,  and  appropriated  by  the 
executor  to  answer  a  particular 
trust,  lie  will  be  considered  to  hold 
the  fund  as  trustee  for  the  trust, 
and  no  longer  as  mere  executor. 
This  principle  is  applied  to  pro- 
tect the  interests  of  cestui  que  trusts. 

lb. 

3.  But  how  far  it  will  avail  to  protect 
the  executor  or  his  representative; 
—  Query.  lb 

i.  But  wliere  a  fund  is  not  treated  by 
the  executor  as  a  trust  fund,  nor 
invested  according  to  the  provi- 
sions of  the  will  creating  it,  but  is 
used  by  him  as  his  own  property, 


or  invested  in  the  name  of  the 
executors  of  his  testator,  the  estate 
of  such  <Jxecutor  is  liable  therel'or, 
and  paK.  .s  into  the  hands  of  his 
executors  charged  witli  liie  pay- 
ment of  tlie  trust  fund.  As  execu- 
tors, they    are    bound    to  account. 

lb. 

.  The  probate  of  the  will  is  conclu- 
sive evidence  of  the  executor'? 
acceptance  of  the  trust.  It  is  noi 
discretit)nary  witii  tiie  executor, 
whether  he  will  or  will  not  act  as 
trustee.  By  accepting  the  oHice 
of  executor,  lie  becomes  ex-officio 
trustee  in  the  stead  of  his  testator, 
charged  with  all  the  duties  and 
responsibilities  of  the  ofiiee,  and 
he  will  be  decreed  in  equity  to 
perform  the  trust.  175 

.  An  executor  has  an  undoubted 
legal  right  to  leave  the  active  ad- 
ministration of  the  estate  to  his 
co-trustee,  but  neither  by  his  tacit 
assent  to  the  acts  of  his  co-trustee, 
nor  by  the  actual  transfer  of  the 
legal  title  to  the  property,  can  he 
acquit  himself  of  his  responsibil- 
ity. _    _        lb. 

.The  retention  by  an  administrator 
of  the  fund  in  his  hands,  mingled 
with  his  own  funds  and  used  for 
his  own  profit,  will  entitle  the 
party  benelicially  interested  in  the 
fund  to  a  discovery  and  an  account, 
and  to  such  decree  as  may  be 
necessary  to  maintain  and  enforce 
the  complainant's  rights.  Frey  v. 
Denial  est,  23(3 

.  The  Orphans  Court  has  no  author- 
ity to  try  disputed  claims,  except 
in  the  case  of  insolvent  estates.  In 
such  case,  either  the  executor  or 
administrator,  or  any  person  inter- 
ested, may  tile  exceptions  against 
the  claim  of  any  creditor,  and  the 
court  are  to  hear  the  proofs,  and 
decree  and  deternune  in  regard  to 
the  validity  of  the  claims.  It  is  a 
settled  principle,  that  the  Orphans 
Court  is  not  the  proper  tribunal 
for  the  trial  of  disputed  claims. 
But  by  a  disputed  claim  here,  is 
meant  a  claim  which  is  disputed 
by  the  executor  or  administrator, 
not  a  claim  which  the  legatee  or 
next  of  kin  may  deem  unfounded 
or  unjust.  Vreeland  v.  Vredand'a 
adm'r,  _    _       513 

).  If  the   executor   or  administrator 


INDEX. 


673 


disputes  a  claim,  or  refuses  to  pay 
it,  tlie  Orplians  Coui-t  cannot  allow 
it,  or  compel  the  executor  or  ad- 
ministrator to  include  it  in  his  ac- 
count. To  justify  the  Orphan^ 
Court  in  allowing  a  claim  against 
an  estate,  it  nnist  appear  that  tlie 
executor  or  admiuistnitor  assented 
to,  or  recognized  it  as  a  debt  due 
from  the  estate.  But  if  the  exec- 
utor or  adiniiiistrator  admit  the 
claim,  and  pray  allowance  for  it  in 
his  account,  it  is  not  a  dispiUed 
claim  within  tlie  meaning  of  the 
rule,  and  falls  properly  within  the 
jurisdiction  of  the  Orphans  Court. 

lb. 

10.  Claims  against  the  estate,  paid  by 
the  executor  or  administrator,  con- 
stitute projierly  a  part  of  his  ac- 
count. If  a  claim  paid  by  an  ex- 
ecutor or  administrator,  is  illegal 
and  unfounded,  the  charge  in  the 
account  is  open  to  exception,  and 
the  question  thus  brought  within 
the  jurisdiction  of  the  Orphans 
Court.  Ih 

11.  The  mere  fact  that  a  debt  or  leg- 
acy has  not  been  actually  paid, 
constitutes  no  objection  to  its  al 
lowanceu[)on  the  settlement  of  the 
account,  if  its  existence  is  clearly 
established.  By  the  settlement, 
the  execut(y  or  administrator  be 
comes  liable  for  the  amount  thus 
allowed.  lb. 


the  investment  must  be  made  ia 
government  stocks,  or  upon  ade- 
quate real  security.  lb. 
15.  An  executor  or  administrator  can 
not  .sell,  and  part  with  the  posses- 
sion of  assets  which  have  come  to 
liis  hands  to  be  administered,  with- 
out requiring  security  for  the  price. 
If  he  sell  under  judicial  sanction, 
he  must  pursue  strictly  the  order  of 
the  court.  If  he  sell  upon  credit, 
without  judicial  sanction  and  upon 
his  own  discretion,  he  must  use  due 
caution  in  obtaining  adequate  se- 
curity. If  he  do  otherwise,  he 
acts  at  his  peril ;  and  if  a  loss  i.s 
sustained  by  the  insolvency  of  the 
purchaser,  he  is  guilty  of  ndcvas- 
tavit.  1  b. 

See  JurvisniCTiON,  4. 
Legacy,  23.  26. 

Practice,  74,  75,  77,  79,  80,  82. 
Trust  and  Trustee,  6. 
Will,  6,  8,  10. 


FR.IUD. 

I.  The  eleventh  section  of  the  "act 
for  the  prevention  of  frauds  and 
perjuries,"  Nix.  Dif/.  330,  requiring 
trusts  to  be  in  writing,  in  terras, 
applies  only  to  trusts  of  lands.  It 
does  not  extend  to  trusts  of  per- 
sonalty. Sayre  v.  Fredericks,  205 
12.  If  an  administrator,  by  collusion  2.  A  mortgage  of  land  is  a  mere  se- 
with  the  claimant,  claims  allow-j  curity  for  the  payment  of  the  debt, 
ance  for  a  debt  not  jiaiil,  in  order  and  is  not  a  conveyance  within  the 
to  withdraw  the  cognizance  of  the  statute  of  frauds,  so  as  not  to  be 
question  from  the  ordinary  tribu-]  assignable  without  writing.  lb. 
nals  of  law  or  equity,  it  is  a  good  3.  A  mortgage  given  to  secure  a  debt 
ground   of    exception    before    the'     to   other   persons  than    the  moit- 


Orphans  Court,  and  the  item  may 
be  stricken  from  the  account.  76.' 
13.  An  administrator  is  accountable! 
for  all  property  of  the  dece.a.sed, 
which  came  to  his  hands  to  be  ad-l 


gagee,  operates  as  a  resulting  trust, 
by  implication  of  law,  in  their  fa- 
vor, which  is  expressly  excepted 
from  the  operation  of  the  statute. 

lb. 


ministered.   He  cannot  be  relieved  4.  Whether  a  convevance  be  fratidu- 


from  the  accountability  on  the 
ground  of  loss,  where  the  loss  was 
occasioned  by  any  default  of  his 
own,  514 

14.  Loans  made  on  private  or  per- 
sonal security,  are  at  the  risk  of 
the   trustees,    who   are   personally 


lent  or  not,  depends  upon  its  bein^ 
made  upon  good  consideration  and 
bona  fde.  If  it  be  defective  in 
either  particular,  although  valid 
between  the  parties  and  their  rep- 
resentatives, it  is  void  as  to  cred- 
itors, lb. 


answerable  if  the   security    prove, 5. The    distinction   between    existing 


defective.  To  afford  com|)lete  in 
demnity  to  the  trustee  against  the 
hazard   of  responsibility    for  loss, 


and  subsequent  debts,  in  reference 
to  voluntary  conveyances,  is,  that 
as  to  the  former,  fraud  is  an  infer- 


Vol.  I. 


2x 


574 


INDEX. 


ence  of  law  ;  as  to  the  latter,  there 
must  be  proof  of  fraud  In  fact. 
Belj'ord  V.  Crane,  2G5 

6.  An  undue  concealment  of  a  fa(;t  to 
tiie  prejudice  of  anotlier,  wliicli 
one  jiany  is  bound  in  con.^cience 
and  duty  to  disclose  to  the  other, 
and  in  respect  to  which  he  cannot  1 
innocently  be  silent,  constitutes  a 
fraud  against  which  equity  will  re- 
lieve.    Nicholson  V.  Janeway,     285 

See  Husband  and  Wife,  ],  2,  5,  7. 
Married  VVomej^,  10. 
Mistake,  2. 

Pleading,  12,1.1,  28  to  31 
Practice,  15,  18. 
Purchaser,  1,  2 
Sheuief's  Sale,  10,  15. 


GRANT. 

A^ee  Charter,  3. 

Corporations,  13. 


GUARDIAN   AND  WARD. 

1.  In  an  attempted  settlement  by  a 
guardian  of  his  account,  either  un- 
der the  act  respecting  the  Orphans 
Court,  Nix.  Big.  575,  or  under  llie 
act  relative  to  guardians,  Nix.  Dig. 
341,  there  must  be  a  compliance 
with  the  requirements  of  the  sta- 
tute, to  render  the  account  exhi- 
bited by  tlie  guardian  prima  facie 
evidence  of  its  correctness,  and  to 
impose  upon  the  ward  the  burden 
of  proving,  or  showing  the  falsity 
or  injustice  of  any  item  of  the  ac- 
count to  which  he  may  afterwards  5 
take  exceptions.  Bui  nliani  v.  Bal- 
ling, 144 

2.  The  design  of  the  act  of  1856,  {Nix. 
Big.  590,  'i  3,)  supplementary  lo 
the  Orphans  Court  act,  was,  that 
notice siiould  be  given  to  the  wanl, 
of  an  intended  settlement  by  his  6 
guardian.  No  notice  to,  or  appear- 
ance by  the  guardian,  can  be  a 
waiver  of  tlie  notice  prescribed  by 
the  act.     Culver  v.  Brown,  533 

3.  Fifteen  per  cent,  commissions  hav 
ing  been  allowed  by  the  Orphans  7 
Court,    the    law    authorizing    but 
jseven  per  cent.,  the  decree  must  be 
corrected.  lb. 


HEARING. 

See  Pleading,  4,  19. 
Practice,  33. 

HUSBAND  AND  WIFE. 

Where  a  wife  takes  the  title  to  land, 
j)urchascd  witii  the  property  of 
the  husband,  under  circumstances 
wliicli  rendei"  the  transaction  frau- 
dulent as  against  the  husband's 
creditors,  she  will  be  treated  as  a 
trustee  for  the  cretlitors,  and  the 
property  will  be  sold  for  their  ben- 
efit. Belj'ord  v.  Crane,  265 
The  existence  of  fraud  is  often  a 
presumption  of  law  from  admitted 
or  established  facts,  irrespective  of 
motive,  and  too  strong  to  be  rebut- 
ted. A  voluntary  settlement  ot) 
the  wife  by  a  husband  while  en- 
gnged  in  business,  and  involved  in 
debt,  is  fraudulent  as  against  cred- 
itors, no  nuitter  how  pure  the  mo- 
tive which  induced  it.  Jb. 
The  right  of  the  husband  to  the 
services  of  his  wife,  and  to  the 
avails  of  her  skill  and  industry,  is 
absolute.  The  wile  can  acquire  no 
separate  property  in  her  earnings, 
though  she  carry  on  business  in 
her  own  name,  except  by  gift  from 
her  husband.  ,  lb. 
A  settlement  by  the  husband  upon 
the  wife,  in  consideration  of  meri- 
torious services,  is  a  pure  gift  or 
voluntMry  settlement,  and  though 
good  as  against  the  husband,  can 
only  be  sustained  against  his  credi- 
tors by  virtue  of  an  antenuptial 
contract.  J  b. 
If  a  party  is  indebted  at  the  time 
of  a  voluntary  settlement,  it  is  pre- 
snn»eil  to  be  fraudulent  in  respect 
tt)  such  debts,  and  no  circumstances 
will  permit  those  debts  to  be  af- 
fected by  the  settlement,  or  repel 
the  legal  presumption  of  fraud,  lb. 
•  The  land  having  been  purchased 
with  the  money  of  the  husband, 
there  is  a  resulting  trust  in  his  fa- 
vor. The  wife  will  be  declared  a 
trustee  for  the  husband,  for  the 
benelit  of  his  creditors.  266 
.  A  trust  deed  by  tlie  husband  for  tlie 
benefit  of  the  wife,  purporting  to 
be  given  to  secure  certain  funds  re- 
ceived from  the  wife,  but  where  no 


INDEX. 


575 


siicli  funds    were  acliially  received  14.  The  wife's  aswnt  to  (he  reduction 


by  l}ie  husband,  is  fraudulent  and 
void  as  against  creditors.  Robert', 
\.  Horlf/es,  300, 

8.  Tiie  act  of   1852,   "for  the  betterj 
securing  tiie   property  of   married! 


by  the  liiisband  of  her  olioses  in 
action  into  posses-ion,  for  liie  mere 
purposeof  re-investnient,  is  no  evi- 
dence of  her  asseTit  to  its  conver- 
sion to  the  use  of  tiie  luisband.   J  h. 


women."  Nix.  Duj.  503,  confers  15.  If  flie  wife's  separate  property 
upon  the  wife  no  power  of  aliening!  consist  of  land,  and  she  iive.s  upon 
or  disposing  of  lier  separate  pro-i  ir,  the  luisband  may  enjoy  it  jointly 
jtcriy ;  she  can  only  do  so  by  thej  with  her;  if  of  chattels"  in  posses^ 
consent,  and  with  the  concnrrencej  sion,  the  husband  may  use  them.  lb. 
of  her  husband.  She  has  the  rigiitlG.  Though  the  wife  may  hold  pro- 
of ownership,   without  tiie  powerj     perty  in  her  own  name,  under  the 


f'f  disposition.      Vrcelund  v.    Vree-\ 
ImuVs  adm'r,  512 

9.  The  right  of  the  husband  to  ihe 
wife's  choses  in  action,  as  well  as! 
to   her   other    property,   real   audi 


act  of  1852,  as  if  she  were  a  feme 
sole,  she  can  make  no  valid  contract 
in  regard  to  it,  nor  can  she  enforce 
its  colic  cii(in,  wit  iiout  the  interven- 
tion of  her  husband.  7  6. 


personal,  was  extinguished  by  the  17.  The  fact  tiiat  while  a  husband  and 


act  of  1852.  lb 

10.  A  bond  given  to  the  wife  in  her 
own  name,  and  accepted  by  her 
in  lie>i.  of  specific  real  and  personal 
property  lo  which  she  was  entitled 
by  inheritance,  remains  absolutely 
licrs,  as  if  she  were  a  single  female, 
and  is  not  subject  to  the  disposal 
of  her  husband.  lb 

1 1.  The  payment  of  such  bond  at  its 
maturity  to  the  husband,  its  sub- 
sequent investment  by  bim  in  hi:- 
own  name,  without  objection  by 
the  wife,  and  his  receii»t  of  the  in- 
terest, is  no  evidence  (since  the  act 
of  1852)  of  the  transfer  of  the  pro- 
perty from  ibe  wife  to  the  husband 
or  of  the  determination  of  her  in 
terest.  Jb 

^2.  The  reduction  of  a  cAo.se  in  action 
(the  separate  ]>roperty  of  the  wife) 
into  possession,  by  the  husband, 
without  the  consent  of  the  wife, 
does  not  change  the  title  of  the 
prop(>rty.  The  liusb:ind  is  account- 
able for  so  much  of  the  estate  of 
the  wife,  secured  to  her  separate 
use,  as  has  come  into  his  hands,   lb. 

13.  Irrespective  of  the  riglits  of  the 
wife  under  the  act  of  1852,  it  is 
not  every  reduction  by  the  hus- 
band, of  the  wife's  choses  in  action 
into  possession,  that  will  vest  the 
property  absolutely  in  the  hus- 
band. The  ownership  follows  the 
■will  of  the  husband.  Ihit  under 
that  act,  the  husband  has  no  right 
to  convert  the  wife's  choses  in  ac-| 
lion  to  his  own  use.     8iich  conver- 


wife  are  living  together,  he  should 
be  fiermitted  to  take  the  interest  or 
profits  of  her  separate  estate  for 
their  mutual  benefit,  or  fjr  his  own 
use,  should,  as  between  the  husband 
and  wife,  raise  no  presumption  pre- 
judicial to  her  rights,  5]3f' 

18.  The  second  secticm  of  the  act  of 
1852  does  not  relate  ort/y  to  the  pro- 
perty in    existence  when   the   law 

;  went  into  operation ;  it  applies 
equally  to  after  acquired  pro[)ertv. 

lb. 

19.  The  bond  having  been  collected 
by  the  hu«band,  and  the  money  in- 
vested in  his  own  name,  the  widow 
cannot  claim  the  protection  of  the 
act  of  1851.  Nix.  Dig.  282,  §  35. 
That  act  extends  only  to  the  specific 
chattel  or  chose  in  action.  Jb. 

See  PitACTiCE,  14. 
INJUNCTION. 


fion  i<  a  violation  of  the  rights  of 
the  wife.  i6.' 


l.The  Court  of  Chancery  ha.s  no 
power,  by  injimction,  to  restrain 
any  citizen  from  petitioning  either 
branch  of  the  legislature  upon  any 
subject  of  legislation  in  wliich  he 
is  interested,  feuch  restraint  would 
be  an  unauthorized  abridgment  of 
the  political  rights  of  the  party 
enjoined.  Stonj  v.  Jersey  City  and 
Bergen  Point  I  lan/c  Road  Co.,     13. 

2.  The  restraining  jKiwer  of  a  court 
of  equity  is  exercised  fcr  the  [iro- 
tection  of  rights,  the  existence  of 
■which  is  clearly  established,  and  so 
far  only  as    may  be  essential  for 


576 


INDEX. 


the  protection  of  those  rights.  Del. 
and  Rar.  Canal  Co.  v.  Bar.  and 
Del.  Bay  Co.,  321 

3.  An  injunction  is  the  proper  remedy 
to  secure  to  a  party  the  enjoyment 
of  a  statute  privilege,  of  wiiich  he 
is  in  the  actual  possession,  and 
when  his  legal  title  is  not  put  in 
doubt.  _    322 

i.  The  powers  of  a  court  of  equity  in 
regard  to  nuisances  are  corrective 
as  well  as  preventive.  It  may  or- 
der them  to  be  abated,  as  well  as 
restrain  them  from  being  con- 
structed. As  a  general  rule,  such 
relief  will  not  be  granted  unless 
made  the  subject  of  a  special  prav- 
er.  ^      323 

5.  To  justify  the  issuing  of  an  injunc- 
tion to  restrain  the  erection  of  a 
nuisance,  or  to  abate  it  after  it  is 
erected,  it  must  ajipear  not  only 
that  the  complainant's  rights  are 
clear,  but  that  the  thing  sought  to 
be  enjoined  is  jirejudicial  to  those 
rights.  The  fact  of  the  nuisance 
must  be  clearly  established.        lb. 

6.  A  structure,  though  illegal,  will 
not  be  enjoined  as  a  nuisance, 
where  it  occasions  no  injury  to  the 
rights  of  the  complainant.  J b. 

7.  The  closing  of  a  road  used  as  a 
highway  for  travel,  by  injunction, 
can  only  be  justified  by  the  clear- 
est necessity.  Jb. 

8.  To  entitle  a  party  to  an  injunction, 
his  title  to  the  property  and  rights 
claimed  by  him,  and  for  the  pro- 
tection of  which  he  askstlie  inter- 
position of  the  court,  must  appear 
in  a  clear  and  satisfactory  manner. 
Morris  Canal  and  Banking  Co.  v 
Central  Railroad  Co.,  41 9 

9.  This  court  will  not  interpose  by 
injunction  to  prevent  an  appre- 
hended injury,  which  is  not  irre- 
parable, and  which  is  capable  ofj 
compensation  in  damages.  420 

10.  An  injunction  should  only  be  is- 
sued in  cases  of  great  injury,  where 
courts  of  law  cannot  atiord  an  ad- 
equate or  commensurate  remedy  in 
damages.  The  right  must  be  clear, 
and  the  injury  be  impending  or 
threatened,  so  as  to  be  averted  only 
by  the  protecting,  preventive  pro- 
cess of  injunction,  lb. 

11.  An  injunction  will  not  be  con- 
tinued for  the  mere  purpose  of  re- 


straining a  naked  trespass,  or  for 
the  purpose  of  quieting  the  pos- 
session of  a  C()mi)lainant  wlio 
shows  no  title  to  the  premises  in 
dispute.     McGee  v.  Smith,         463 

See  Corporations,  2,  8. 
Pleading,  36. 
Practice,  12,  21,  54. 
Spec.  Perf.,  10. 


INSOLVENT  CORPORATION. 

1.  The  only  criterion  of  insolvency, 
furnished  by  "tlie  act  to  prevent 
frauds  by  incorporated  companies," 
(in  regard  to  companies  other  tlian 
banking),  is  the  suspension  of  busi- 
ness. Bedford  v.  Newark  Machine 
Company f  117 

2.  The  act  of  insolvency  contempla- 
ted by  the  statute,  is  committed  at 
the  time  the  company  suspends  its 
ordinary  business  operations.     lb. 

3.  Under  the  42d  section  of  "  the  act 
to  authorize  the  establishment,  and 
to  prescribe  the  duties  of  compa- 
nies for  manufacturiug  and  other 
purposes,"  all  laborers  in  the  em- 
ploy of  the  company  at  the  time 
of  the  suspension  of  its  business 
operations,  and  not  those  only  in 
their  employ  at  the  time  of  insti- 
tuting legal  proceedings  against 
them  as  an  insolvent  corporation, 
are  entitled  to  priority  in  payment 
over  the  other  creditors  of  the  com- 
pany, lb. 

4.  The  apprentices  of  such  company 
are  entitled  to  their  wages  without 
regard  to  the  time  that  they  were 
kxst  actually  laboring  for  the  com- 
pany. Their  legal  rights  cannot 
be  afiected  by  the  refusal  or  ina- 
bility of  the  company  to  furnish 
ihem  with  employment.  lb. 

5.  A  judgment  confessed  by  a  party 
on  the  eve  of  insolvency,  without 
any  view  or  ex}>ectation  of  obtain- 
ing aid  to  enable  him  to  continue 
his  business,  affords  strong  evi- 
dence that  it  was  done  in  contem- 
plation of  insolvency,  and  with 
the  view  of  preferring  creditors. 
Stratton  v.  Allen,  229 

6.  In  the  distribution  of  the  funds  of 
an  insolvent  company,  a  judgment 
confessed  in  contemplation  of  in- 


INDEX. 


577 


eolvencT,  and  willi  tlie  view  of 
preferring  creditors,  is  entitled 
no  priority.  Tlie  debt  will  be  paid 
pi-oporlionabli/  with  the  other  del)t.< 
of  the  company.  J h. 

7.  A  creditor  of  an  insolvent  corpo- 
ration, who  shows  a  itMsonable  ex- 
cuse fur  not  presenting  his  elaiii 
wiiiiin  the  time  limited  by  the 
order  of  the  court  in  proceedings 
under  "tlie  act  to  ])revent  frands 
by  incorporaled  companies,"  Nix 
J)if/.  371,  will  be  admitted  at  any 
lime  before  actual  distribution,  or 
even  after  jiartial  payments,  if 
there  be  a  surplus  in  the  iiands  of 
the  receivers,  so  as  not  to  interfere 
with  payments  already  made 
GrinneU  v.  Merchants  Insuravce 
Co.,      _  283 

8.  A  creditor  does  not  by  snch  pre- 
sentment, obtain  a  vested  right  to  a 
certain  dividend  to  the  exclusion 
of  others.  lb. 

9.  The  fact  that  the  petitioner  was  an 
otiicer  of  the  corporation,  and  that 
the  proceedings  to  establish  its  i 
solvency  were  instituted  in  1 
name,  cannot  prejudice  his  riglitto 
be  let  in  to  prove  his  claim  before 
the  receivers.  lb. 

10.  Ten  days  allowed  to  present 
claim.  lb. 


INSOLVENT  DEBTOR. 


ground    for    the    interference    of 
ecpiity.     Stratton  v.  Allen,  229 

2.  If  the  instrument  upon  which  the 
jiidgu)ent  was  entered,  was  with- 
out consideration  or  inv.alid,  or  if 
the  judgment  was  unauthorized  or 
illegal,  the  remedy  for  a  party  ag- 
grieved is  by  application  to  the 
court  in  which  it  was  entered,  or 
by  writ  of  error.  lb. 

3.  A  judgment  can  only  be  impeached 
in  a  court  of  ecpiiiy  for  Iraud  in 
?7,s  concoction,  and  not  for  fraud  in 
the  instrument  upon  which  it  i:* 
founded.  1 6. 

See  Insolvent  Corporations,  5,  6. 
Mechanics  Lten,  4. 
Practice,  16,  55,  5(5. 


JURISDICTION. 

1.  The  proper  office  of  courts  of  jus- 
tice is  to  adjiulicate  upon,  and  to 
protect  and  enforce  the  legal  and 
equitable  right  of  parties  litigant, 
as  they  are  establislied  by  existing 
laws.  It  is  no  part  of  their  appro- 
priate function  to  determine  in 
advance,  whether  a  proposed  law 
may  or  may  not  be  enacted  consist- 
ently with  the  rights  of  parties,  or 
to  interfere  directly  or  indirectly 
with  the  course  of  legislation. 
Story  V.  Jersey  City  and  Bergen 
Point  Plank  Bond  Co  ,  13 

See  Assignment   for  Benefit   of  2.  The  Court  of  Chancerv  is  not  de- 


Creditors  and  Fraudulent 
Trusts. 


INTEREST. 

See  Legacy,  16  to  18. 
Usury. 


INTERPLEADER. 
See  Sale  op  Land,  7. 

JUDGMENT. 

1.  Olijections  relating  to  the  regular- 
ity of  a  judgment  at  law,  or  to  tlie 
validity  of  the  instrument  upon 
which  it  is  founded,  constitute  no 


prived  of  its  original  jurisdiction 
in  any  case,  either  by  the  operation 
of  a  statute  conferring  similar  ju- 
risdiction upon  the  common  law 
courts,  or  by  the  adoption  in  those 
courts  of  the  principles  or  practice 
of  courts  of  equitv.  Prey  v.  Dem- 
are.-t,  '  236 

3.  The  court  of  equity  has  concurrent 
jurisdiction  with  the  Prerogative 
Court  over  the  adu)inistration  of 
the  assets  of  deceased  |)ersons.    lb. 

4.  Unless  for  some  special  cause,  a 
court  of  equity  will  not  interfere 
with  the  ordinary  jurisdiction  of 
the  Orphans  Court  in  the  settle- 
ment of  the  accounts  of  executors 
or  administrators.  Nor  will  it  at- 
tempt to  look  behind  such  settle- 
ment, unless  on  the  ground  of  fraud 
or  mistake.  lb. 


678 


INDEX. 


,  When  there  is  uncertainty  a-?  to 
the  extent  of  the  responsibility  of 
a  party  from  whom  rent  is  soiin;lU 
to  be  recovered,  a  court  of  equiiy 
will  maintain  jurisdiction  of  a  suit 
for  its  recovery.  iSwedesborough 
Church  V.  Shivers,  453 


LACHES. 


See  Practice,  34. 

Sheriff's  Sale,  3,  6. 


LEGACY. 

Israel  Woodward,  by  his  will,  gave 
and  bequeailied  as  follows:  "I 
give  and  bequeath  to  my  daughter, 
Elizabeth  lilack.  ihe  sum  of  four- 
teen htnidrcd  dollars,  which  sum  I 
order  my  executors  to  put  out  at 
interest,  and  take  laud  security  for 
the  same,  :ind  pay  her  the  yearly 
interest  arising  iliereon  during  lier 
natural  life  ;  and  if  she  dies  leav-j 
iiig  no  lawfid  issue,  I  order  the  said 
puni  of  fourteen  hundred  dollars  to 
be  divi<led  between  mv  sons  and 
daughters  equally."  He  died  leav- 
ing seven  children  beside  the  said 
legiitee.  Shortly  after  his  death, 
six  of  the  seven  children  signed 
the  following  instrument:  "  Where-i 
as,  our  father,  Israel  Woodward, 
in  his  last  will  and  testament,  has 
befiuealhed  unto  his  daugliter, 
Elizabeth  \\.  Black,  the  iniere-t  of 
§51,400  during  her  natural  life,  but 
not  to  receive  any  part  of  the  prin- 
cipal :  Now  be  it  remembered,' 
that  we,  the  subscribers,  legatees  of 
tlie  said  Israel  Woodwird,  do 
hereby  agree  that  the  said  sum  of 
$1,40U  shall  be  paid  to  her  by  tlie| 
executors  of  said  will,  at  the  time 
of  the  decease  of  Edward  Black,' 
her  present  husband  ;  but  in  case 
the  said  Elizabeth  W.  Black  should 
dei)ari  this  life  before  the  said  Ed-' 
vvaril  Black,  then  this  aiireement' 
iO  be  void  and  of  no  efl(?<-t  "   Held — 

,.  The  gill  over  was  valid.  As  ap- 
|)!ied  to  'personal  estate,  such  limi- 
taiion  over  imports  not  an  indeti-' 
niie,  but  a  definite  failure  of  issue. 

2.  By  the  terms  of  the  gift,  Elizabeth 


Black  took  the  entire  interest  of 
the  testator,  defeasible  on  her  leav- 
ing no  issue  at  her  death. 

3.  Tlie  sons  and  daughters  of  the  tes- 
tator, living  at  his  death,  took  a 
rested  interest  in  the  residuary  gift, 
defeasii)le  upon  the  death  of  the 
legatee  lor  life,  leaving  issue. 

4.  The  interest  of  the  residuary  lega- 
tees vested  not  in  possession,  but  in 
right,  upon  the  testator's  death,  so 
as  to  be  transmissible  to  their  per- 
sonal representatives. 

5.  The  limitation  over  is  to  all  the 
sons  and  daughters  of  the  testator, 
and  the  interest  of  either  of  such 
legatees  is  not  defeated  by  his  or 
her  death  before  the  legatee  for 
life,  but  is  transmitted  to  his  per- 
sonal representatives. 

G.  The  defeasible  iiUerest  of  the  lega- 
tees in  tlie  legacies  over,  upon  the 
death  of  the  iegatee  for  life,  was 
assignable. 

7.  The  omission  of  one  of  the  lega- 
tees to  sign  the  agreement,  will  not 
invalidate  it  as  against  those  who 
did  sign  it,  they  having  derived  all 
the  benetit  sought  by  the  arrange- 
ment, and  having  incurred  no  ad- 
ditional burden  or  loss.  Wood- 
ivard's   adin'r  v.    Woodward^s  ex'rs, 

■      83 

8.  To  constitute  a  specific  legacy,  the 
thing  bequcaibed  must  be  specified 
anil  diatuKiiiished  from  the  rest  of 
the  testator's  estate.  Norris  v. 
Thomson's  ex'rs,  218 

9.  The  intention,  of  the  testator  must 
be  cx])ressed  in  reference  to  the 
thing  bequeathed,  or  it  must  other- 
wise clearly  appear  from  the  will. 

lb. 

10.  To  guard  against  an  ademption  or 
extinguishment  of  the  legacy,  con- 
trary to  the  intention  of  the  testa- 
tor, the  general  leaning  of  the  court 
is  against  making  the  legacy  spe- 
cilic.  lb. 

11.  A  becpiest  of  government  securi- 
ties, or  of  shares  in  pulilic  compa- 
nies, or  of  bonds  of  corporations 
outstanding  and  circulating  as  well 
known  securities  at  the  date  of  the 
will,  is  not  a  specific  bequest,  un- 
less there  is  a  clear  reference  to  the 
corpus  of  the  fund.  lb. 

12.  A  legacy  may  be  rendered  specific 
by  the  use  of  the  term  "  my  "  stock, 


INDEX 


579 


or  the  stock  now  "  in  my  possession, 
or  "standing  in  my  name,"  or 
"owned  by  me,"  or  by  any  other 
form  of  expression  which  clearly  in 
dlcates  the  purpose  of  tlie  testator 
to  give  tlie  specijic  thing,  and  not  to 
designate  tlie  quantity  or  species 
of  tlie  tiling  bequeathed.  lb. 

13.  If,  by  the  terms  of  the  will,  there 
be  no  such  identification  of  the 
thing  bequeathed,  tlie  legacy  is 
general,  and  if  not  found  in  the 
possession  of  the  testator  at  his 
death,  is  tantamount  to  a  direction 
to  the  executors  to  purchase  such 
securities  for  the  legatee.  Jb. 

14.  The  mere  possession  by  the  testator, 
at  tiie  date  of  liis  will,  of  a  larger 
amount  of  stoci<s  or  bonds  than 
are  bequeathed,  will  not  make  the 
bequest  specific,  when  it  is  given 
generally  of  stocks,  or  of  stocks  in 
particular  funds  without  further 
explanation.  lb. 


terest  on  the  legacies  would  have 
been,  the  period  during  which  such 
support  was  furnished,  will  be  de- 
ducted from  the  time  during  which 
interest  is  allowed  on  the  legacy.  lb. 

19.  To  constitute  a  legacy  specific,  it 
is  necessary  that  such  intention  be 
either  expressed  by  the  testator  in 
reference  to  the  thing  bequeathed, 
or  otherwise  clearly  appear  from 
the  will.  Norris  v.  Thomaon's  ex'rs, 

512 

20.  This  is  not  a  technical  arbitrary 
rule,  to  be  answered  only  by  the 
use  of  [)articular  words  and  expres- 
sions, but  is  an  embodiment  of  the 
general  princi[)les  by  which  the 
character  of  legacies  should  he 
tested  and  determined,  each  will 
resting  for  correct  construction 
upon  the  language  employed,  and 
upon  estal)Iished  surrounding  sig- 
niticant  circumstances,  if  such  ex- 
ist, lb. 


15.  The  nature  of  the  legac}',  whether  21.  The  language  used  by  the  testator 


general  or  specific,  will  be  found 
always  to  depend  upon  the  terms 
of  the  gift  to  the  legatee,  without 
reference  to  the  circumstance, 
whether  the  estate  was,  or  was  not 
put  in  trust.  lb 

16.  As  a  general  rule,  where  the  will 
is  silent  as  to  interest,  a  legacy 
bears  interest  only  from  the  time 
it  is  made  payable.  But  where  a 
legacy  to  a  child  of  the  testator  is 
made  payable  at  a  future  day,  and 
no  maintenance  in  the  meantime  is 
provided  for  the  legatee,  the  legacy 
bears  interest  from  the  death  of 
the  testator.     Jordan  v.  Clark,  243 

17.  Where  the  testator  has  expressly 
provided  maintenance  up  to  a  cer- 
tain period,  leaving  a  chasm  be- 
tween that  period  and  the  time  of 
the  payment  of  the  legacy  nnjiro- 
vided  for,  interest  will  be  allowed 
upon  the  legacy  during  such  inter- 
val, by  way  of  maintenance.      lb. 

18.  Where  the  devisee  of  land  charged 
with  the  payment  of  legacies,  has 
furnished  the  legatees  with  sup- 
port, though  not  in  strict  conform- 
ity with  the  requirements  of  the 
will,  and  such  su{)port  was  fur- 
nished and  accepted  as  a  substitute 
for  the  provision  directed  by  the 
will,  and  was  in  fact  more  advan- 
tageous to  the  legatees  than  the  in- 


in  creating  and  directing  the  trusts 
in  the  will,  has  a  clear  reference  to 
the  stocks  and  particular  bonds 
which  the  testator  possessed  when 
he  executed  the  will,  and  shows 
that  the  testator  intended  that  the 
legacies  should  be  discharged  by 
his  trustees  handing  over  to  the 
respective  legatees,  stock  and 
bonds  which  they  would  find  in 
his  strong  box  after  his  death.  Per 
Ogde.v,  J.  76. 

22.  If  the  language  of  the  will  does 
not  come  up  to  the  rule  laid  down 
in  the  books,  the  circumstant-es  by 
which  the  testator  was  surrounded 
when  the  will  was  drawn,  and  the 
whole  scope  and  texture  of  the  in- 
strument taken  in  conection  with 
the  particular  clauses  of  bequest, 
clearly  indicate  an  intention  to 
create  a  specific  legacy.  Jb. 

23.  Where  there  is  a  general  bcqtiest 
for  life  with  remainder  over,  the 
whole  property  must  be  sold  and 
converted  into  money  by  the  ex- 
ecutor, the  proceeds  invested,  and 
the  interest  only  paid  to  the  lega- 
tee for  life.  The  rule  prevails, 
except  there  is  an  indication  of  an 
intention  on  the  part  of  the  testa- 
tor, that  the  legatee  for  lite  should 
receive  the  properly  bequeathed. 
Howard  v.  Howard's  ex'rs,  486 


680 


I  X  D  E  X  . 


24.  The  circumstances  that  a  bequest  3.  A  bill  exhibited  by  a  person  of 
of  general  pergonal  estate  is  in  the  unsound  mind  should  be  taken 
same  sentence  with  a  devise  of  the  from  the  files.  48o 
real,  will  not  make  the  legacy  spe- 4.  The  bill  in  this  cause  liaving  been 
cific.                                                  lb.      filed  by  a  lunatic,  and  the  defend- 

25.  The  well  settled  rule  in  equity  is,;  ant  having  demurred,  leave  wag 
that  where  it  appears  that  ihere  is  given  to  withdraw  ihe  demurrer, 
danger  that  the  principal  of  the^  and  bill  ordered  to  be  taken  from 
legacy  will  be  wasted  or  lost,  the  the  files.  Jb. 
*oiwt'wiH  protect  the  interest  of  5.  A  commission  of  lunacv  may  i-ssue 
the  legatee  in  remainder,  by  com-,  where  the  alleged  lunatic  is  an  in- 
pelling  the  legatee  for  life  to  give  fant.  In  re  Chatiin,  _  _  496 
security  for  the  safe  return  of  the  6.  The  issuing  of  a  commission  of 
principal.                                         Jb.      lunacy  rests  in  discretion.  lb. 

26.  Under  like  circumstances,  the  7.  "Where  the  alleged  lunatic  is  in  an 
executor  himself  will  be  required      asvlum.  the  commission  should  be 


to  give  security  for  the  safety  of 
the  fund.  -lb. 


LEGATEE  FOR  LIFE. 

See  Leg.\cy,  23,  25. 
Practice,  42  to  46. 
WiLX,  5. 


LEGATEE  IN  REMAINDER. 

See  Legacy,  4  to  6. 
PRAcncE,  42  to  45. 
Trust  and  Trustee,  4.        j 

I 

I 
LOAN.  I 

I 

The  forbearance  or  giving  time  for 
the  payment  of  a  debt,  is  in  sub-j 
stance  a  loan.    Diercks  v.  Kennedy, 

210 

LUNATIC. 

1.  A  lunatic  can  sue  only  by  hiscom- 
Diiitee  or  guardian,  wlio  is  respon- 
sible for  ihe  conduct  of  the  suit,  or 
by  the  Attorney  General  or  next 
friend,  where  the  interests  of  the 
guardian  clash  with  those  of  the 
lunatic.     Norcom  v.  Rogers,       484 

2  If  a  complainant  appear  upon  the 
face  of  the  bill  to  be  a  lunatic,  and 
no  next  friend  or  committee  is 
named  in  the  bill,  the  objection 
may  be  raised  by  demurrer,  or  by 
motion  to  take  the  bill  from  the 
■iiles.  lb. 


executed  in  the  county  where  his 
mansion  and  estate  are,  or  where 
he  last  resided  before  being  sent  to 
the  asylum.     In  re  Child,  493 

8.  It  is  not  absolutely  necessary  that 
the  alleged  lunatic  should  be  be- 
fore the  jury.  A  commission  may 
issue  where  he  is  a  non-resident, 
or  temporarily  absent  from  the 
state,  and  where  it  is  impossible 
for  the  jury  to  see  him.  lb. 

9.  If  necessary,  the  court  will  order 
the  party  having  the  alleged  luna- 
tic in  charge,  to  bring  him  before 
the  jury.  lb. 

10.  Where  the  estate  of  the  lunatic  is 
small,  the  court  will,  it  seems,  in 
order  to  avoid  inconvenience  and 
expense,  order  the  commission  to 
issue  to  a  different  county  from 
that  in  which  lie  resides.  lb. 


MARRIED  WOMEN. 

l.In  the  absence  of  any  trust  deed 
or  settlement,  defining  and  limit- 
ing the  mode  in  which  a  separate 
estate  shall  be  charged  by  the  wife, 
equity  will  charge  it,  while  she 
lives  apart  from  her  husband,  with 
debts  contracted  by  her  for  her 
own  benefit,  without  any  express 
appropriation  by  the  wife,  of  the 
estate  or  any  part  of  it,  to  the  pay- 
ment of  the  debt.  Johnson  v.  Cum- 
mins, 97 

2.  The  separate  estate  of  a  married 
woman  is  subject  in  equity  to  the 
payment  of  debts  contracted  in 
reference  to,  and  upon  the  faith 
and  credit  of  the  estate.  Ih. 


I  X  D  E  X 


581 


3.  Where  a  married  woman  lives 
apart  from  her  husband,  and  hav-j 
ing  a  separate  estate,  contracts' 
deblH,  the  court  will  impute  to  her 
the  intention  of  dealing  with  her; 
aeparate  estate,  unless  the  coutrarv' 
is  siiown.  98 

4.  It  is  no  defence  to  a  claim  uj^on  1 
the  separate  estate  of  the  wife,; 
that  llie  separate  estate  of  the 
wife  created  bv  the  statute  {Xix. 
Dig.  503,  ^  1,)  is  a  legal  estate,  and 
that  tlie  enforcement  of  the  claimj 
in  ibia  aspect,  is  not  properly' 
witliin  the  cognizance  of  a  court 
of  equity.  lb. 

o.  The  jurisdiction  of  a  court  of 
equity  over  the  separate  estate  of  a' 
married  woman  rests  not  merely  2 
upon  the  ground  that  it  is  an  equit-j 
able  estate,  but  upon  the  ground, 
that  it  is  lier  separale  estate,  which  I 
is  equitably  subject  to  contracts! 
and  engagements  entered  into  by' 
her,  wlucii  are  not  legally  binding! 
upon  her  per^onally,  and  wiuchjS, 
cannot  be  enforced  at  law.  Ib.\ 

6.  N(»r  is  it  material  whether  the  es- 
tate is  vested  in  a  trustee,  the  in-i 
terest  of  the  wife  being  merely ,4, 
equitable,  or  directly  iu  her,  so' 
that  f-be  has  both  the  legal  audi 
e(iuitable  interest.  76.' 

7.  The  statute  (act  of  1S5'2,  for  the 
better  securing  of  tlie  property  of 
married  women,)  does  not  impair 
the  riglit  of  the  husband  to  an  es- 
tate by  curtesy  in  the  separate 
property  of  the  wife.  lb. 

S  Nor,  as  it  seems,  does  the  act  take 
away  the  husband's  right  to  ad-'l 
minister  upon,  and  to  take  as  his] 
own,  the  personal  property  of  the 
deceased  wife,  where  she  dies  in- 
testate, lb. 

9.  .\  gift  of  money  to  a  married  wo- 
man in  1S4S,  being  made  without 
a  settlement  upon  lier,  as  well  as 
her  earnings  during  tiie  coverture.  2. 
are  the  propertv  of  the  husband. I 
Sinilh  V.  ]'ycehvid,  lOS' 

10.  A  voluntary  ccmveyanceto  a  tnar-| 
ried  woman  by  her  husband,  while: 
he  is  embarrassed  by  debts,  isj 
fraudulent  and  void  as  against  cred-' 
itors.  76.1 

11.  The  act  of  lSo2.  f(ir  the  better  se-i 
curing  the  property  of  marriedi 
women,   confers  upon   the  wife   a 


mere  jus  lenendi.  It  gives  her  no 
power  to  di-^pose  of  her  properly. 
Belford  t.  Crane,  2ti5 


MECHANICS'  LILN. 

,  A  lien  claim  filed  upon  separate 
buiiding<  and  upon  distant  lots  of 
land,  without  apportioning  the 
claim  and  designating  speciticaliy 
the  amount  claimed  upon  eacii,  is 
not  .1  compliance  with  the  btatute 
(Nix.  Dig.  524).  and  must  be  post- 
poned to  the  claims  of  other  ec- 
cumiirancers.  Jlorris  County  Barik 
V.     Iiuc/:away   Manufacturing    Co., 

150 
Nor  does  it  remedy  the  objection, 
tiiat  it  appears  by  the  evidence 
that  tlie  claim  may  be  apportioned 
between  the  ditlerent  buildings  in 
proporti(>n  to  the  value  of  the  ma- 
terials used  in  the  construction  of 
each  of  them.  76. 

A  claim,  not  filed  according  to  the 
requiremeut.s  of  the  statute,  consti- 
tutes no  encumbrance  ujwn  tlie 
premises.  lb. 

A  judgment  at  laic  entered  upon 
the  lien,  tiie  lien  claim  not  having 
been  filed  pursuant  to  the  statute, 
gives  it  no  priority  in  p:iyment, 
nor  any  advantage  over  liens  upon 
which  judgment  has  not  been  ren- 
dered. 76. 


MISTAKE. 

Equity  will  relieve  against  a  con- 
tract made  under  a  mistake,  or  ig- 
norance of  a  materiid  fact ;  not  only 
where  there  has  been  a  conceal- 
ment of  facts  by  one  party,  but 
also  in  cases  of  mutual  mistake  or 
ignorance  of  facts.  Sicholson  v. 
Janeway,  285 

To  constitute  a  fraud  or  mistake 
for  which  equity  will  relieve 
against  a  contract,  it  is  essential 
that  the  fact  misrepresented  or  con- 
cealed be  material.  It  must  either 
afiectthe  substance  of  the  contract, 
or  the  value  of  the  thing  bargained 
for ;  or  be  such  as  indures  the  party 
agsrieved  to  pay  more  or  accept 
less,  for  the  thing  bargained  for, 
than  its  rtal  value.  76 


582 


INDEX. 


3.  Equity  will  not  grant  relief  against 
a  contract  on  the  ground  of  mis- 
take, when  the  niistai<en  fact  did 
not  operate  as  an  inducement  to 
enter  into  the  contract.  lb. 

4.  Where  the  diH'eren»'e  between  the 
actual  and  estimated  quaniity  of 
acres  of  land  sold  in  the  gross,  is 
BO  great  as  to  warrant  the  ct>nclu- 
fiion  tliat  the  parlies  would  not 
huve  contracted  had  the  truth  been 
known ;  in  such  case  tlie  party  in- 
jured is  entitled  to  relief  in  equity 
on   the    ground   of    groas   mistake. 

Weai-t  V,  liuse,  2!J0iG 


MORTGAGE. 

By  the  act  of  1854,  Nix.  Dig.  851,  ? 
61,  when  '.he  nio'lgagee  resides  in 
a  d'fi'erent  townsliip  from  tJiat  in 
whicli  the  mortgaged  premises  lie, 
the  tax  on  the  money  secured  by 
the  mortgage  is  to  be  assessed 
against  and  paid  by  the  mortgagor 
in  the  township  where  the  hinds 
lie,  and  the  receipt  of  the  collector 
therefor  is  made  a  legal  payment 
for  so  much  of  the  interest  of  the 
mortgage,  and  is  to  be  allowed  and 
deducted  therefrom  by  the  mort- 
gagee.    Held — 

1.  The  payment  of  the  tax  and  the 
receijit  of  the  collector  is  a  legal 
payment  of  so  much  interest,  not 
of  principal;  a  payment  of  tliea^^ 
crucd  and  accruing  interest,  not  of 
interest  to  grow  due  at  some  future 
time. 

2.  When  a  mortgagor,  entitled  to 
have  the  tax  assessed  against  and 
paid  by  hir^  <leducted  from  the  in- 
terest, has  paid  the  interest  in  full 
as  it  became  due,  without  deduct- 
ing the  tax,  he  cannot  afterwards 
claim  any  deduction  therefor  from 
the  arrears  of  interest.  Keeney  v. 
Atwood,  35 

3.  A  deed  of  assignment  endorsed 
upon  a  mortgage,  though  duly  exe- 
cuted and  acknowledged,  })asses  no 
interest  to  tlie  assignee,  where  the 
contract  under  which  the  assign- 
ment was  executed,  was  never  con-  9 
Bummated,  and  the  mortgage  never 
delivered  to  the  assignee.  liose  v. 
Kimball,  185 

4.  A  party  taking  by  assignment  from 


the  first  assignee,  with  constructive 
notice  of  prior  equities,  will  stand 
in  no  better  position  than  his  as- 
signor. 1  b. 

.  At  common  law  personal  estate  is 
the  primary  fund  for  the  payment 
of  debts,  and  tiie  heir-at-law  may 
call  upon  the  executor  to  exonerate 
the  land  by  discharging  the  mort- 
gage debt  out  of  the  persona)  es- 
tate. The  devisee  stands  in  the 
same  position  as  the  heir,  and  is 
entitled  to  the  same  equity.  Keene 
V.  Munn,  393 

.  But  the  mortgagee,  or  alienee,  of 
the  heir  or  devisee,  has  no  sucli 
equity.  The  principle  is  adopted 
in  favor  of  tlie  iieir  or  devisee 
alone,  and  not  in  favor  of  his 
alienee.  lb. 

.  Where  a  mortgagor  has  from  time 
to  time  aliened  certain  portions  of 
the  mortgaged  premises,  that  por- 
tion not  aliened  will  be  first  sold 
to  satisfy  a  decree  of  foreclosure 
and  sale  ;  if  such  sale  do  not  bring 
sufficient  to  satisfy  the  decree,  then 
the  parcel  last  aliened  will  be 
sold,  and  so  on  in  the  reverse  order 
of  tiie  conveyances,  until  the  de- 
cree is  satisfied.  lb. 
A  agreed  to  convey  to  B  a  tract  of 
land  for  ?500.  B  applied  to  C  for 
a  loan  of  that  amoimt.  C  agreed 
to  loan  B  ?5o0  upon  his  giving  a 
niortgajie  upon  the  said  tract  for 
$850,  with  interest  at  seven  per 
cent.  Upon  agreement  between 
tiie  parlies  A  executed  a  deed  to 
B  for  the  land  for  the  nominal  con- 
sideration of  $850;  B  giving  A  a 
bond  and  mortgage  for  that  amount. 
A  assigned  the  mortgage  to  C  in 
ptirsuance  of  the  agreement,  for 
?550 ;  $50  in  cash  to  be  paid  to  B. 
Of  this  amount  nothing  was  actu- 
ally paid  to  B.  Upon  a  bill  to 
foreclose,  filed  by  C  to  recover  the 
nominal  consideration  of  $850. 
Held  — 

The  transaction,  though  in  form  a 
sale  and  mortgage  of  $850,  in  re- 
alitv  was  a  sale  and  mortgage  for 
$500. 

The  mortgage  was  not  usurious. 
It  was  made  for  a  legitimate  pur- 
pose, though  for  a  larger  amount 
than  was  really  due.  There  being 
no  usury  in   the  inception  of  the 


INDEX. 


583 


contract,  no  aubesquent  transaction 
can  render  it  usurious. 

10.  The  coniphiinunt.s  are  entitled  to 
llie  $500,  iictiially  advanetd  bv 
tlieni  to  tiie  mortgagee.  Tlie  con- 
tract by  wbieii  Uiey  claim  1^350  be- 
yond ihat  amount  was  usurious, 
and  cannot  be  enforced.  Under 
such  circumstances,  the  mortgage 
will  be  deemed  a  security  lor  ilie 
amount  actually  advanced.  Wal- 
ter V.  Liiul,  445 

11.  If  a  mortgagee  in  possession,  per- 
mits the  mortgagor  to  take  ihe 
profits  of  tlie  mortgaged  premises, 
the  mortgagee  will  be  charged,  in 
favorof  stibsequenl  encumbrancers, 
with  all  the  profits  lie  might  liuve 
received.  So  if  the  mortgagee  re 
fuses  to  enter,  but  sutlers  the  mort- 
gagor to  take  the  profits,  and  to 
protect  his  possession  by  menus  of 
llie  mortgage.     JJcmareat  v.  licm/, 

481 

12.  The  principle  upon  which  the 
court  acts  is,  that  if  the  mortgagee 
be  in  possession,  or  act  nitilnfulc  in 
regard  to  sul)seipient  enciimliran- 
cers,  he  will  be  charged  not  ou\y 
with  all  protiis  received,  but  with 
all  whiih,  without  fraud  or  wilful 
default,  he  might  have  received 
from  the  mortgaged  premises.     76. 

13.  Where  the  mortgagee  is  not  in 
actual  possession  by  himself  or  iiis 
tenant,  and  has  received  no  part  of 
the  protits,  nor  useil  liis  mortgage 
to  interfere  with  the  claims  of  sub- 
sequent encumbrancers,  or  to  pro- 
tect the  possession  of  the  mortga- 
gor, he  is  not  chargeable  with  any 
part  of  the  profits.  Jb. 

14.  The  general  rule  is,  that  where  .a 
))art  ot  tlie  mortgaged  premises  has 
been  aliened  by  the  mortgagor  and 
a  {)art  retained  by  him,  the  j)art 
retained,  as  between  the  mortgagor 
anil  his  alienee,  is  primarily  charge- 
able with  the  debt.  Wealherby  v. 
Slack,  _        _  491 

1 ).  The  real  question  in  such  cases 
must  always  be,  who,  in  equity,  is 
bound  to  pay  the  debt?  The  debt 
is  due  from  the  mortgagor  to  the 
encumbraucers,  and  his  portion  of 
the  mortgaged  premises  must  pri- 
marily bear  the  burden,  unless  it 
be  shown  that  it  has,  by  some 
means,  been  shifted  u[)on  the  por- 


tion of  the  alienees.  This  fact  it 
is  incumbent  upon  the  mortgagor 
to  establish.  lb. 

See  Pleading,  1,  2. 
pKACTici;,  tio,  66 
Taxes,  11. 
TuusT  AND  Tkustee,  3. 

USUKY,  1. 


MULTIFARIOUSNESS. 
See  Pleading,  13,  14,  31,  36. 

NE  EXEAT. 

The  court  will  not  grant  a  writ  of 
nc  exeat  against  the  husband,  or  an 
injimction  to  restrain  him  from 
alienating  his  jiroperly,  upon  the 
iiiere  apprehension  of  an  abandon- 
ment.   Anshulz  V.  Ansliutz,        162 

NOTICE. 

See  Agreement,  11. 
JJeed,  4,  5,  6. 
Pkactic'E,  51. 
puruuaser,  1,  2,  4. 

NUISANCE. 
See  Injunction,  4,  5,  6. 

ORPHANS  COURT. 

See  Executors  and    Administra 
TORS,  8,  9,  10,  12. 
Jurisdiction,  4. 
Practice,  67,  83. 

PARTIES. 

See  Pleading,  1,  2,  3, 17,  18,  19,  28, 
29,  30,  43. 
Practice,  33,  87. 

PARTNERSHIP. 

1.  An  undue  concealment  of  a  fact  to 
the  prejudice  of  another,  which 
one  party  is  bound   in  conscience 


584 


INDEX. 


and  duty  to  disclose  to  the  other, 
and  in  respect  to  whicli  he  cannot 
innocently  be  silent,  constitutes  a 
fraud  against  wliicli  ecjiiity  will  re- 
lieve. J\^iclioUoii  V.  Janewai/,  285 
2. In  all  transactions  between  part 
ners,  and  all  parties  occupying  to 
wards  eacli  other  a  fiduciary  char 
acter,  the  law  requires  the  utmost 
degree  of  good  faith.  lb 

3.  If  a  {)artner  who  sui)erintends  the 
business  and  accounts  of  tlie  con- 
cern, by  concealment  of  the  true 
state  of  the  accounts  and  business, 
purcha.ses  the  share  of  another 
jjartner  for  an  inadequate  price, 
the  purchase  will  be  held  void,  and 
the  purchaser  compelled  to  account 
for  the  real  value.  lb. 

4.  Nor  does  it  afi'ect  the  case  that  the 
alleged  concealment  is  charged  to 
have  been  practiced  by  one  part- 
ner only,  and  that  the  others  were 
ignorant  of  the  fact  concealed. 
The  principle  applies,  whether  the 
fraud  was  perpetrated  by  the  party 
directly  interested,  or  by  an  agent. 
The  principal,  by  seeking  to  re- 
tain any  benefit  resulting  from 
the  transaction,  becomes  particeps 
criniinlii.  however  innocent  of  the 
fraud  in  its  incept  ion.  1  b. 

5.  A.  joint  execution  upon  a  judgment 
for  a  partnership  debt,  may  be  ex- 
ecuted not  only  against  the  part- 
nership properly,  but  against  the 
separate  estate  of  each  partner,  for 


between  the  parties  in  interest  in 
the  mortgage  debt,  the  surviving 
obligee  may  file  the  bill  in  his  own 
name,  and  make  the  executor  ot 
the  deceased  co-obligee  a  defenil 
ant.  lb. 

3.  Whether  the  executoi- of  a  deceased 
co-obligee  should  be  joined  with 
the  surviving  obligee  as  complain- 
ant, or  be  made  a  party  defendant 
to  the  suit,  is  a  question  oi'  form, 
and  should  be  raised  upon  demur- 
rer. J  b. 

4.  Objections  to  pleadings  which  in- 
volve no  substantial  interest,  are 
not  allowed  upon  the  final  hear- 
ing, lb. 

5.  Where  the  answer  alleges  general- 
ly, that  the  contract  upon  which 
the  suit  is  brought  is  usurious, 
Avithout  any  more  specific  allega- 
tion, it  must  be  intended  that  the 
defence  is  that  the  contract  is  in 
violation  of  the  statutes  of  this 
state,  and  to  that  oljectiou  alone 
the  defence  must  be  limited.  At- 
tvater  v.  Wal/ccr,  42 

6.  The  inquiry  when  the  cause  is 
heard  upon  a  Jilea,  is  substantially 
as  if  the  complainant  had  dtriiur- 
red  to  the  plea.  Jjavisou's  ex'rs  v. 
Johnson,  112 
ll'  the  complainant  deems  tlie  plea 
bad,  the  case  goes  to  hearing  upon 
the  plea;  if  good,  but  not  true,  he 
takes  issue  ui)on  it  and  proceeds  as 
in  case  of  an  answer.  lb. 


each  is  answerable  for  the  whole,  S.  The  subject  of  the  inquiry  is  not 


and  not  merely  for  his  pro{)orti 
ate  part  of  the  debt.     Randolph  v. 
Daly,  _  314 

6  A  court  of  equity  will  protect  and 
enforce  the  legal  right  ol  an  execu- 
tion creditor  at  law  to  levy  upon 
the  separate  property  of  each  part- 
ner of  a  firm.  lb. 


PLEADING. 

1.  Where  a  mortgage  is  given  or  as- 
signed for  the  payment  of  a  debt 
due  to  two  or  more  jointly,  on  a 
bill   to  foreclose  filed   by  the  sur 


the  mere  technical  form  of  the  plea, 
but  the  sntficiency  of  its  avermenls 
to  sustain  the  defence ;  whether 
assuming  all  the  facts  properly  set 
out  in  the  plea  to  be  true,  it  pre- 
sents a  valid  defence.  lb. 
9.  The  pendency  of  a  former  suit  be- 
ing pleaded  in  bar,  the  defendant 
may  state  the  pendency  and  object 
of  the  former  suit,  and  aver  that 
the  present  suit  was  brought  ior 
the  same  matters;  or  he  may  omit 
the  averment  that  the  suits  are  for 
the  same  subject  matter,  provided 
he  state  facts  sufficient  to  show  that 
they  are  so.                                      lb. 


viving  obligee,  the  executor  of  a  10.  A  complainant  cannot  compel  a 
deceased  co-obligee  need  not  ne-  demurrer  u{)on  the  facts  as  staled 
cessarily  be  joined  asacojrajj/ainaw/.  in  the  bill,  if  they  are  imperfectly 
Freemen  v.  Scofield,  28      or    inadequately  stated.     The   de- 

2.  Where  there  are  conflicting  claimsi     fendant  must  be  at  liberty  to  plead 


INDEX. 


585 


the  facts  upon  which  he  relies  for 
his  defence,  in  such  form  and  witli 
such  detail  as  to  raise  the  real 
question  which  he  desires  to  pre- 
sent. Ih. 

11.  An  award  constitutes  no  valid 
defence  lo  an  action,  unless  it 
clearly  appear  (iiat  the  subject 
matter  ot  the  suit  was  within  the 
award.  113 

12.  A  denial  hy  the  answer  of  the 
existence  of  frauti,  will  not  avail 
to  disprove  it,  where  the  answer 
admits  facts  from  wliich  fraud  foi 
lows  as  a  natural  and  legal,  if  not 
a  necessary  and  unavoidable  con 
elusion.     Sayre  v.  Fredericks,     2U5 

lo.  A  bill  filed  to  obtain  satisfaction 
of  a  judgment  at  law  is  not  denuir- 
rable  on  the  ground  of  nuiliifari- 
ousness,  because  it  seeks  to  remove 
fraudulent  conveyances  and  en 
cumbrances,  and  also  to  bring  with 
in  the  reach  of  the  judgment,  equit 
able  interests  which  are  not  the 
subjects  of  execution  at  law.  Way 
V.  Brafjaiv,  213 

14.  Where  the  case  made  by  the  bill 
is  so  entire,  that  it  cannot  be  pros- 
ecuted in  several  sdits,  and  yet 
each  of  the  defentlants  is  a  neces- 
sary party  to  some  part  of  tiie  case 
as  stated,  neither  of  the  defendants 
can  demur  for  multifariousness  or 
for  a  misjuinder  of  causes  of  ac- 
tion, in  some  of  which  he  has  no 
interest.  Ih. 

15.  Where  a  judgment  creditor  files 
a  bill  in  ecjuity  to  obtain  aid  in  en- 
forcing the  payment  of  his  judg- 
ment at  law,  it  is  no  ground  uf  de- 
murrer that  other  creditors,  not  in 
equal  degree,  are  not  made  parties 
to  the  bill.  lb. 

16.  A  i)Iea  of  another  suit  depending 
for  the  same  cause  in  bar  of  a  suit 
in  equity,  can  only  be  of  a  suit  de- 
pending in  the  same,  or  in  some 
other  court  of  equity.  214 

17.  Cestui  que  trusts  are  not,  it  seems, 
necessary  parties  to  suits  against 
trustees,  to  compel  the  specific  per- 
formance of  contracts,  except  where 
Bome  question  arises  touching  the 
power  of  the  trustees  to  execute 
the  contract,  or  their  authority  to 
act  under  it.  Vandoi-en  v.  Robin- 
son, 25G 

18.  But   wliei'e  a   bill  in   equity  in- 


volves the  title  of  the  c.eMui  qua 
trusts  to  the  property  in  dispute, or 
where  they  are  interested,  not  only 
in  the  fund  or  estate  respecting 
which  the  question  at  issue  has 
arisen,  but  also  in  that  question  it- 
self, they  are  necessary  parties.  ] h. 

19.  An  objection  for  want  of  proper 
parties  taken  at  the  hearing  will 
not  prevail,  unless  such  parties  are 
necessary  to  the  final  determina- 
tion of  tlie  cause.  Jh. 

20.  Where  the  cause  is  heard  upon 
bill  and  answer,  the  answer  must 
be  taken  as  conclusive  proof  of  the 

facts  which  it  sets  up  by  way  of 
defence.  But  intentions  and  mo- 
tives are  not  facts,  touching  which 
the  answer  is  conclusive.  BelJ'ord 
V.  Crane,  iiCo 

21.  A  defendant  cannot  pray  any- 
thing in  his  answer  but  to  be  dis- 
missed the  court.  If  he  has  any 
relief  to  pray,  or  discovery  to  seek 
against  the  complainant,  he  must 
do  so  by  cro.s.s-biil.  Miller  v.  Greg- 
ory, 274 

22.  An  answer  to  a  bill  to  foreclose 
cannot  draw  in  question  the  fair- 
ness and  validity  of  a  sale,  the  pur- 
chase money  whereof  the  mortgage 
was  given  to  secure,  or  impeach 
the  contract  on  which  the  title  of 
the  mortgagor  is  foundtd.  These 
matters  can  only  be  drawn  in  ques- 
tion by  cross-bill.  lb. 

23.  An  answer  to  a  bill  for  divorce 
on  the  ground  of  desertion,  which 
sets  up  as  a  defence  a  general  and 
vague  charge  of  cruelty  on  thejjart 
of  the  husband,  without  specifying 
any  act  of  cruelty,  or  making  any 
statement  from  which  it  can  be  dis- 
covered in  what  the  cruelty  con- 
sisted, is  radically  defective.  Moorcs 
V.  Moores,  275 

24.  The  defendant  is  bound  to  state 
in  his  answer  all  the  circiniistances 
of  which  he  intends  to  avail  him- 
self by  way  of  del'ence,  and  to  ap- 
prise the  complainant  in  a  clear  and 
unambiguous  manner,  of  the  na- 
ture of  the  case  he  intends  to  set 
up.  Jb. 

25.  Evidence  must  be  confined  to  the 
issue  nuule  by  the  jdeadings,  ami 
all  evitlence  in  support  of  totally 
distinct  facts  from  those  relied 
upon  in  the  bill  or  answer,  is  irrel- 


586 


INDEX 


evant,   impertinent,   and   inadmis- 
sible. Ih. 

26.  Under  general  allegations  pariic- 
ular  instances  may  be  proved,  but 
in  sucli  cases  the  general  charge 
must  be  of  such  precise  and  definite 
character,  as  to  ap[)risethe  adverse 
party  of  the  nature  of  the  evidence 
to  be  intiodiiced.  lb. 

27.  A  court  of  equity  will  not  de- 
prive a  defendant  of  his  defence^ 
upon  a  mere  technicality  of  plead-i 
ing,  when  its  admission  adects  pre- 
judicially no  right  of  tliecomplain-i 
an!.  lb. 

28.  Where  the  pole  design  of  the  bill 
is  to  have  the  individual  property 
of  one  partner,  alleged  to  have 
been  fraudulently  conveyed  away 
by  him,  applied  in  satisfaction  of  a 
judgment  against  the  firm,  another 
panner  from  whom  no  discovery  is 
bought,  and  agtiinsi  whom  no  relief 
is  i)rayed,  is  neither  a  necessary 
nor  a  proper  party.  Ilandolph  v. 
Daly,  '  oV'i 

29.  A  wife  is  a  proper  party  to  a  l)ill 
filed  to  set  aside  conveyances  cif  the 
husband's  properly  made  to  her,  or 
in  which  sIjc  has  joimd,  and  which 
ai-e  charged  to  have  been  volunta- 
ry and  fraudulent  as  against  cred- 
itors of  the  husband.  1  b. 

30.  It  is  no  cause  of  demurrer  to  a 
bill  to  set  aside  fraudulent  convey- 
ances made  Ity  a  debtor,  that  a  de- 
fendant, to  whom  part  of  the  pro- 
perty has  been  conveyed,  has  no 
coniiection  with  other  fraudulent 
transactions  of  the  debtor.  If  the 
defendant  is  a  necessary  party  to 
some  part  of  the  case  as  stated,  he 
cannot  ofiject  that  he  has  no  inter- 
est in  other  transactions  constitu- 
ting a  part  of  the  entire  case.     /  h. 

31.  A  bill  hied  by  an  execution  cred- 
itor is  not  demurralde  for  multifa- 
riousness because  it  seeks  to  set 
aside  fraudulent  conveyances,  and 
at  the  same  time  to  reach  other 
property  of  the  debtor,  which  is 
not  the  subject  of  execution  at  law, 
and  respecting  which  a  discovery 
is  prayed.  314 

32.  The  transactions  charged,  being 
parts  of  a  series  of  acts  all  tending 
to  defeat  the  plaintiti's  remedy  at 
law,  may  properly  be  united  in  the 
same  bill.  lb. 


33.  Certainty  to  a  common  intent  is 
all  that  is  ordinarily  required  in 
pleadings  in  eqtiity.  lb. 

34.  To  entitle  an  execution  creditor 
to  relief,  it  must  ajiptar  by  the  bill 
that  he  has  exhausted  his  remedy 
at  law.  and  that  the  aid  fd'  this 
court  is  necessary  to  enable  him  to 
obtain  satisfaction  of  his  judgment. 

Ih. 

35.  Where  the  cause  is  heard  upon  bill 
and  answer,  the  allegations  ol  the 
answer  are  to  be  taken  as  true. 
lieecVs  ex'r.'i  v.  lieed,  '2iS 

36.  A  bill  asking  an  injunction  to 
restrain  waste,  and  als(j  an  account 
for  rtnt  due,  is  demurralde  on  the 
ground  of  nndtifariousness.         lb. 

37.  A  general  allegation  in  a  bill  for 
divorce,  that  the  defendant  within 
asi)ecified  time  hascommitted  adul- 
tery, is  insufficient.  The  [>arty  with 
whom  the  crime  is  believed  to  have 
been  committed,  must  be  named  ; 
or  if  iHiknown,  an  averment  to  that 
eliect  is  necessarv.  Marsh  v.JIarsli, 

39L 

38.  The  cliarge  must  be  so  fidl  and 
specific  that  tliejjarty  charged  may 
know  what  he  is  called  on  to  an- 
swer. It  should  state  the  time 
when,  the  place  w'here,  and  if 
known,  the  person  with  whom  the 
oflence  was  committed.  It  is  not 
necessary  to  state  the  day,  but  the 
month  and  year  should   be  stated. 

lb. 

39.  An  averment  that  the  statements 
contained  in  the  bill  are  made  upon 
information  and  belief,  cuusLitutes 
no  ground  of  demurrer.  lb. 

40.  Al)ill  {)raying  a  discovery  from 
the  defendant,  whether  since  her 
marriage  she  has  not  committed 
adidtei'V  with  any  person  whatever, 
and  with  whom,  and  at  what  time 
and  place,  and  inider  what  circimi- 
stances,  is  demurrable.  The  rule 
is,  that  the  defendant  is  not  bound 
to  accuse  himself  of  a  crime,  or  to 
furnish  tiny  evide^nce  whatever 
which  shall  lead  to  an  aci'usation 
of  that  nature.  And  the  objection 
lies  to  a  partictdar  interrogatory, 
though  the  bill  be  in  other  respects 
unexceptionable.  lb. 

41.  Under  a  general  demurrer  for 
want  of  equity,  no  objection  for 
want  \)ifonn  can  projierly  be  raised. 


INDEX. 


587 


A  demurrer  nui!=t  express  the  sev-|     practice,    except   by    proviJing    a 
eral  causes  of  deniiirrer.  392      more  expeditions  mode  of  proceed- 

42.  Demurrer  overruled,  with   leave      inj^   by  order,  instead  of  resorting 
to  amend    by    slating  tlie  grounds      to  a  bill  of  revivor.  J b. 

of  demurrer  within    twenty  days,  7.  No   costs  are  given,  either  under 


the  statute,  or  by  practice  irre- 
spective of  the  statute,  if  the  com- 
plainant, or  his  representative, 
elect  not  to  proceed.  lb. 


unless  theconiplainant  within  that 

time   shall    amenil  his  bill  in  the 

particulars  objected  to.  lb. 

43.  A  bill  is  not  demurrable  for  want 

of  proper  parties,  when  all  the  per-  8.  Where  a  sole  plaintifi'or  defendant 
sons  whose  rights  are  to  be  affected  dies  after  the  final  argument,  but 
by  tlie  decree  are  joined.  Swedes-'  before  decree,  the  court  may  order 
buvough  Church  v.  Shivers,  453      the  decree  to  be  signed  as  of  a  date 

I     prior  to  the  death  of  the  party.  J  b. 

9.  Where  a  sole  plaintitf  or  defend- 

POWER.  I     ant  dies  after  decree,  either  party 

j     may  revive  the  suit.  lb. 

See  Deed,  3.  10.  The  judgment  or  decree  of  a  court 

of    general    jurisdiction,    upon 


PRACTICE. 

Litis  no  defence  to  a  suit  brouglit 
by  a  wife  after  the   death  of   her 


subject  matter  within  its  jurisdic- 
tion, is  final  and  ccmclusive,  and 
can  never  be  questioned  in  a  col- 
lateral suit.  Young's  adiu'r  v. 
Bathbone,  224 


husband,  to  foreclose  a  mortgage  11.  But  where  the  order  or  decree  is 
made  to  her  joinlly  with  her  hus-|  not  an  error  of  judgment,  but  an 
band  for  the  benefit  of  the  wife,i  usurpation  of  power,  it  is  not  con- 
that  the  bond  wa.s  given  to  tlie  Inus-,  elusive,  and  may  be  drawn  in  ques- 
band  a/o?ie,  and  to  his  heirs.  She  tion  in  a  collateral  proceeding.  225 
is  the  surviving  mortgagee,  and  has  12.  The  court  will  not  grant  a  writ 
a  clear  right  to  enforce  iier  remedy      of  ne  exeat  against  the  husband,  or 


under  the   mortgage.      Burlew 

Hillman,  23 

,  A  party  beneficiaJUi  interested  in  a 

contract  may  maintain    a  suit   in 


an  injunction  to  restrain  him  from 
alienating  his  property,  upon  the 
mere  appreliension  of  an  abandon- 
ment.    Anshutzv.  Anshuiz,        162 


equity  in  his  own  name  to  enforce  13.  A  bill  will  not  lie  for  divorce  on 


such  rights,  though  he  be  not  a 
party  to  the  in.strument  creating 
them.  16.1 

3.  Where  there  are  several  parties  in' 
interest,  and  the  mortgagor  is  inj 
doubt  as  to  the  rights  of  the  com- 
plainant under  a  bill   to  foreclose,' 


the  ground  of  desertion,  where  the 
parties  are  living  apart  under  ar- 
ticles of  separation,  or  by  nuunal 
agreement,  and  where  the  party 
seeking  it  has  not  expressed  a  de- 
sire to  terminate  the  agreement. 
Moores  v.  Moores.  276 


he  is  entitled  to  have  the  question  14.  A   voluntary  agreement  between 


judicially  determined  for  his  own 
security,  but  not  at  the  cost  of  the| 
mortgagee.  Ib.l 

4.  The  general  rule  is  that  the  riort-l 
gagee  is  entitled  to  costs,  both  on 
bills  to   redeem  and  to  foreclose. 

Ib.l 

5.  The  rule,  irrespective  of  the  statute,] 


husband  and  wife  to  live  .separate, 
constitutes  no  bar  to  an  action,  by 
either  of  the  parlies,  for  a  restitu- 
tion of  iuarit;il  rigjits.  Nor  does 
it  operate  in  the  eye  of  the  law,  as 
a  release  of  either  of  the  parties 
from  their  matrimonial  obligations. 

lb. 


is  that  where  a  sole  phiintiti'  orde-!15.  A  court  of  equity  has  the  power 


fendant  dies  before  decree,  the  suit 
cannot  be  revived  at  the  instance 
of  the  defendant,  or  of  his  legal 
representative.  Benson  v.  Wolver- 
ton,  110 

6.  The   statute   has    not   altered   the 


to  aid  a  judgment  creditor  to  reach 
the  property  of  his  debtor,  either 
by  removing  fraudulent  judgments 
or  conveyances  wiiich  obstruct  the 
plaintifi"'s  remedy  under  the  judg- 
ment, or  by  appropriating  in  satis- 


583 


INDEX. 


faction  tliereof,  rights  or  equitable 
interests  of  the  deCentliUil,  which 
are  not  the  siibject  of  legal  execu- 
tion.    Robert  V.  Hodges,  299 

16.  If  a  creditor  seeks  the  aid  of  tid-^ 
court  ngainst  the  real  estate  of  his 
debtor,  he  must  show  a  judgment 
at  laiv  creating  a  lien  on  such  es- 
tate; if  he  seeks  aid  in  regard  lo 
the  personal  estate,  he  musi  show 
an  execution  giving  him  a  legal 
preference  or  lien  on  the  goods  and 
cliattelri.  "  lb. 

17.  To  reach  an  cquildhle  interest  of 
the  debtor,4iie  creditor  must  first 
liave  taken  out  execution  at  law, 
and  have  required  it  to  be  levied 
or  returned,  so  as  to  show  a  failure 
of  his  remedy  at  law.  Equity  will 
only  grant  its  aid  to  enforce  legal 
process,  when  it  appears  that  the 
legal  remedy  of  tlie  complainant 
is  exhausted.  Ih. 

18.  A  creditor  at  Inrge,  or  before  judg- 
ment, having  no  specific  lien  on  his 
debtor's  property,  is  not  entitled  to 
the  interference  of  equity,  by  in- 
junction, to  prevent  the  debtor 
from  disjiosing  of  his  property  in 
fraud  of  his  creditor.  lb. 

19.  An  attaching  creditor,  having  a 
lien  upon  the  propeity  of  his  debtor 
by  authority  of  the  statute,  prior 
to  the  recovery  of  judgment,  is  en- 
titled to  the  aid  of  a  court  of  equity 
to  enforce  his  legal  right.  300 

20.  If  the  court,  where  judgment  is 
recovered,  bave  jurisdiction  of  the 
person  of  the  defendant,  and  of 
the  subject  matter  of  the  suit,  its 
concbisivencss  cannot  be  ques- 
tioned in  the  forum  of  another 
state,  where  it  is  sought  to  be  en- 
forced, lb. 

21.  The  tiling  of  exceptions  to  an  an- 
swer, constitutes  no  technical  ob- 
jection to  the  dissolution  of  an  in- 
junction. The  court  will  look  into 
them  merely  to  ascertain  whether 
they  relate  to  the  points  of  the 
bill  upon  whicli  the  injunction 
rests.  lb. 

22.  It  is  within  the  power  of  a  court 
of  equity  to  consolidate  actions 
with  or  without  the  consent  of  the 
complainants.  Jiarnham  v.  Dal- 
ling,  310 

23.  The  order  for  consolidation  is  not 
of  right,  but  is  matter  of  discre- 


tion, and  upon  such  terras  as  the 
court  may  direct.  lb. 

24.  Where  a  guardian  has  failed  to 
account  as  reipiircd  by  law,  and 
sets  up  a  prior  account  as  a  bar  to 
accounting  in  this  court,  and  a  de- 
cree for  an  account  is  made,  the 
complainant  will  be  allowed  costs 
up  to  the  decree.  lb. 

25.  A  party  in  interest  having  died 
since  the  argument,  and  before  the 
signing  of  the  decree,  the  decree 
and  orders  in  the  cause  should  be 
signed  and  filed  as  of  the  date  of 
the  argument.  Jb. 

20.  An  order  for  that  purpose  is  ne- 
cessary, lb. 

27.  The  return  of  the  shcriflT  that  the 
defendants  are  not,  either  in  their 
jiartnership  name  or  as  inilividuals, 
seized  or  possessed  of  any  estate, 
real  or  personal,  which  could  be 
seized  or  taken  by  virtue  of  the 
execution,  must  be  taken  as  prima 
facie  evidence  of  the  fact,  and  is 
sufiicieiit  to  give  the  complainants 
a  standing  in  this  court.  Randolph 
v.  Daly,  314 

28.  Upon  a  bill  filed  to  recover  the 
interest  of  a  legacy  only,  a  decree 
cannot  be  made  for  the  payment  of 
the  princijial  which  has  fallen  due 
since  the  liling  of  the  bill.  Jordan 
V.  Clark,  _  243 

29.  Such  decree  is  not  within  the  spe- 
cial prayer  for  relief,  and  could  not 
have  been  [irayed  for  at  the  time 
of  filing  the  bill.  If  relief  is 
asked,  to  which  the  complainant  is 
not  entitled,  the  bill  is  demurrable. 

lb. 

30.  Under  the  general  prayer  for  re- 
lief, thg  relief  granted  must  be 
agreeable  to  the  case  made  by  the 
bill,  and  such  as  the  case  stated 
will  justify.  lb. 

31.  In  a  foreclosure  suit,  if  the  mort- 
gage is  forfeited,  and  the  complain- 
ant entitled  to  a  decree  of  fore- 
closure at  the  time  of  the  com- 
mencement of  the  suit,  a  decree 
for  the  whole  amount  due  upon  the 
mortgage,  whether  it  becomes  due 
before  or  after  the  filing  of  the 
bill,  is  strictly  within  the  prayer 
for  relief,  and  such  as  the  case 
stated  will  justify.  lb. 

32.  When  the  title  of  cestui  que  Irusta 
to  the  fund  in  question  is  involved, 


INDEX. 


689 


no  decree  will  be  made  unless  thej 
are  belbre  the  court.  Heed's  ex'ri-- 
V.  Meed,  _    _         _  248 

33.  On tiniil  hearing, permisj^ion  given 
to  amend  by  consent,  by  adding 
necessary  parties  wiliiin  ten  days, 
and  beture  signing  the  decree.     Jb. 

34.  Gross  laches  and  long  delay  on 
the  part  of  the  eoniplainant  in  a 
simple  foreclosure  case,  in  com- 
mencing and  prosecuting  his  suit, 
is  unjust  and  oppressive  to  the  de 


over  by  way  of  remainder,  the 
legatee  in  remainder  is  no  Ion  ;er 
entitled,  as  formerly,  to  call  upon 
the  tenant  for  life  for  security  tliat 
the  chattels  shall  be  forthcoming 
after  lus  decease.  The  recognized 
practice  of  the  court  now  is,  to 
require  an  inventory  to  be  signed 
by  the  devisee  for  life,  and  to  be 
deposited  with  the  master  for  the 
benefit  of  all  parties.  Howe's  ex'rs 
V.  White,  411 


fL-ndant,  and    is  a   strong  circum-  43.  Personal  property  not  given  spe 


stance  against  the  justice  of  the 
complainant's  claim.  Hhipman  v. 
Cook,  261 

35.  A  commission  under  wliich  a  par- 
ty has  been  found  an  habitual 
drunkard,  will  not  be  superseded 
upon  a  hearing  without  notice,  nor 
upon  ex  parte  affidavits,  even  with 
tiie  assent  of  the*  guardian.  In  re 
Weis,  _        _  318 

36.  The  practice  in  proceedings  to 
supersede  a  commission,  in  cases 
of  habitual  drunkenness,  should 
be  substantially  the  same  as  in 
cases  of  lunacy.  J  b. 

37.  The  truth  of  the  facts  alleged  in 
the  petition  may  be  examined 
either  in  open  court  or  before  a 
master.  Proceeding  by  reference 
to  a  master  adopted  as  the  most 
convenient,  safe,  and  expeditious 
coiirse.  Jb. 

38.  In  an  application  for  alimony 
pendente  lUe,  the  case  must  be  ta- 
ken most  strongly  against  the  pe- 
titioner. The  burthen  of  proof  is 
upon  her.    Wallincj  v.  Walling,  389 

39.  All  the  facts  upon  which  an  order 
for  alimony  is  founded,  must  be 
proved.  The  order  must  not  rest 
upon  mere  presumption  or  con- 
jecture. Jb. 

40.  Where  the  circumstances  upon 
which  a  proper  adjustment  of  ali- 
mon/  materially  depends,  do  not 
appear  in  the  petition,  a  reference 
to  a  master  will  be  ordered,  to  as- 
certain the  real   facts  of  the  case 

Jb 

41.  Under  the  special  circumstances 
of  this  case,  the  question  was  dis- 
posed of  upon  the  facts  stated  in 
the  petition,  without   a   reference. 

390 

42.  In  the  case  of  a  specific  bequest 
of  chattels  fur  life,  and  a  limitation 


Vol.  I 


cifically  but  cjenerally,  or  as  a  resi- 
due of  personal  estate,  must  be 
converted  into  money  ;  the  inter- 
est only  to  be  enjoyed  by  tlie  ten- 
ant for  life,  and  the  principal  re- 
served for  the  remainderman.  Tliis 
rule  prevails,  unless  there  be  in  the 
will  an  indication  of  a  contrary 
intention.  Jb. 

44.  Where  a  legacy  is  given  generaW 
iy,  subject  to  a  limitation  over 
upon  a  subsequent  event,  tiie  di- 
vesting contingency  will  not  pre- 
vent the  legatee  from  receiving  his 
legacy  at  the  end  of  a  year  from 
the  testator's  death,  and  he  is  not 
bound  to  give  security  for  repay- 
ment of  the  money  in  case  the 
event  should  liai)pen.  lb. 

45.  In  the  case  of  a  legatee  for  life, 
or  subject  to  a  limitation  over,  in 
order  to  justify  the  requisition  of 
security  from  tlie  first  legatee, 
there  must  be  danger  of  the  loss  of 
tlie  property  in  the  hands  of  the 
first  taker.  lb. 

4G.  The  mere  fact  that  the  legatee  for 
life  is  a.  feme  covert,  cannot  in  itself 
furnish  any  evidence  of  danger  of 
loss.  Jb. 

47.  A  bill  for  relief  on  the  ground  of 
danger  of  loss  of  a  legacy  for  life, 
subject  to  a  limitation  over  by  way 
of  remainder,  is  in  the  nature  of  a 
bill  quia  timet,  and  may  be  filed  as 
well  against  the  executor  himself 
where  the  fund  is  in  his  hand,  as 
against  the  legatee  fur  life,  where 
the  fund  is  in  his  hand.  Jb. 

48.  An  objection  to  a  suit  that  the 
amount  involved  is  too  trivial  to 
justify  tlie  court  in  taking  cogni- 
zance of  it,  may  be  taken  advan- 
tage of,  by  special  motion  to  dis- 
miss the  bill,  or  the  court  may  of 
its  own  motion  at  the  hearing,  or- 


2o 


590 


INDEX. 


der  the  bill  to  be  dismissed.  Swedes- 
borough  Church  V.  Shivers,  453 

49.  If  a  suit  have  no  other  object 
than  the  mere  recovery  of  a  .sum  of 
$1.75,  the  bill  will  be  dismi><sed  ; 
but  if  it  seeks  to  establish  a  right 
of  a  permanent  and  valuable  na- 
ture, it  falls  within  ihe  recognized 
exceptioii.s  to  the  general  princi- 
ple, and  the  court  will  maintain 
jwiirtdiction,  lb. 

50.  The  issuing  of  a  subpcena,  except 
in  cases  to  stay  waste,  before  the 
filing  of  the  bill,  is  irregular,  and 
if  jiromptly  brought  to  the  notice 
of  the  court,  the  subpoena,  on  mo- 
tion for  that  purpose,  will  be  set 
aside  as  illegally  issued.  Crowell 
V.  Botaford,  458 

51.  Where  a  party  seeks  to  set  aside 
llie  proceedings  of  his  adversary 
for  an  irregularity  which  is  merely 
technical,  he  must  make  his  appli- 
cation for  that  i)urpose  at  the  first 
opportunity.  If  a  solicitor,  after 
notice  of  an  irregularity  take.-*  any 
step  in  the  cause,  or  lies  liy  and 
snflier.s  his  adversary  to  proceed 
therein  under  a  belief  that  his  pro- 
ceedings are  regular,  the  court 
will  not  interfere  to  correct  the  ir- 
regularity, if  it  is  merely  techni- 
cal, lb. 

52.  The  statute  {Nix.  Dig.  97,  I  6,)  is 
merely  directory  of  the  mode  of 
proceeding.  The  time  or  form  in 
which  the  thing  is  directed  to  be 
done,  is  not  essential.  The  pro- 
ceedings in  such"  cases  are  valid, 
though  the  command  of  the  statute 
is  disregarded  or  disobeyed.         lb 

53.  The  issue  of  the  subpoena  before 
bill  filed,  is  a  purely  technical  ir- 
regularity, and  is  waived  by  an 
appearance.  459 

54.  Tiie  tiling  of  exceptions  to  the  an- 
Hwer  constitutes  no  objection  to  the 
dissolution  of  an  injunction,  if  the 
equity  of  the  bill  upon  which  the 
injunction  rests  has  been  fully  an 
fiwered.     3IcGce  v.  Sinilhf  4(33 

55.  A  party  who  comes  into  a  court 
of  equity  for  relief  against  a  judg- 
ment or  other  security,  on  the 
ground  of  usury,  will  only  be  re- 
lieved upon  paying  what  is  really 
due  upon  such  security.  Giveans  v. 
MeMurtnj,  468 

5(>.  ^Vhere    a  party,   as   security    for 


money  loaned,  has  taken  an  assign- 
ment of  a  pre-existing  judgment 
against  the  borrower,  and,  as  a  fur- 
ther security  for  the  same  debt,  has 
also  taken  a  bond  and  mortgage ; 
a  decree  of  this  court  declaring  the 
bond  and  mortgage  usurious  and 
void,  will  not  avail  the  debtor  in 
a  bill  for  relief  to  have  the  judg- 
ment declared  satislied  of  record, 
the  assignment  being  untaintctl 
with  usury.  Ih. 

57.  The  evidence  of  a  co-defendant  is 
not  rendered  incouifietent  by  the 
fact  that  no  order  was  made  for  his 
examination.  Since  the  act  of 
1859,  {Nix.  Big.  928,  §  34,)  remov- 
ing  the  disqualilication  of  interest 
in  a  witnes.-^,  as  a  party  or  other- 
wise, no  order  for  his  examination 
is*  necessary.  76. 

58.  Nor  is  it  anji  objection  to  the 
competency  of  a  co-defendant  to 
testify,  that  he  has  not  answered 
the  bill,  but  has  suffered  a  decree 
pro  confesso  against  him.  The  com- 
plainant may,  at  his  discretion,  re- 
quire him  to  answer.  But  if  he 
do  not,  the  defendant,  by  iailing  to 
answer,  cannot  deprive  his  co-de- 
fendant of  his  testimony,  or  dis- 
qualify himself  as  a  witness  in  the 
cause.  lb. 

59.  Upon  a  bill  for  an  account,  the 
only  material  evidence  upon  the 
original  hearing,  is  that  which  con- 
duces to  prove  the  com]jlainant'3 
right  to  an  account.  The  ordinary 
decree  is  that  an  account  shall  be 
taken.  Evidence  as  to  the  partic- 
ular items  of  the  account  is  irrele- 
vant, and,  in  strictness,  inadmissi- 
ble at  this  stage  rtf  the  cause.  Hudson 
v.  Trenton  Locomotive  and  Machine 
Mdnnj'nctnring  Co.,  475 

60.  As  a  general  rule,  the  court  will 
not,  at  the  original  hearing,  exam- 
ine or  decide  whether  particular 
items  of  the  account  shall  or  shall 
not  be  allowed.  476 

61.  The  court  must,  it  would  seem, 
settle  the  construction  and  effect  of 
agreements  between  the  parties,  by 
which  their  muttlal  dealings  were 
regulated,  and  by  which,  conse- 
quently, the  account  must  be  con- 
trolled"", lb. 

62.  The  court  will  give  special  direc- 
tions to  the  master  as  to  the  man- 


INDEX. 


591 


ner  of  taking  the  account,  and  tlie 
prineiiilen  by  wliicli  he  sliould  be 
governed  in  taking  it.  76. 

63.  The  decree  nmsl  direct  to  what 
matters  tlie  account  sliall  extend, 
and  in  decreeing  a  general  account, 
special  directions  will  be  rendered 
proper  and  necessary  by  the  par- 
ticular  circumstances  of  the  case. 

lb. 

64.  Where  the  evidence  has  been  taken 
on  both  sides  before  the  hearing, 
without  objection,  it  may  be  used 
by  the  court,  so  far  as  may  be  ne- 
cessary, in  giving  directions.      lb. 

65.  A  suit  for  foreclosure  upon  each 
of  two  mortgages  covering  the 
same  premises,  both  of  which  were 
in  the  hands  of  the  complainant 
when  the  first  bill  was  filed,  is  un- 
necessary and  oppressive,  and  costs 
will  be  allowed  but  in  one  suit. 
Demaresf,  v.  Berry,  481 

66.  But  where  the  second  bill  was 
rendered  necessary  by  the  fact 
(discovertd  ai"ter  the  filing  of  the 
first)  that  the  mortgage,  upon  which 
the  first  bill  was  filed,  covered  a 
])art  only  of  the  premises  included 
in  the  other  mortgage,  proceedings 
in  the  first  suit  will  be  stayed,  and 
the  second  suit  alone  proceed  to 
decree.  Jb. 

67.  Where  the  notice  requiring  cred- 
itors to  present  theii-  claims,  has 
been  given  in  pursuance  of  an 
order  of  the  Orphans  Court,  under 
section  3d  of  the  "act  concerning 
the  estates  of  persons  who  die 
insolvent,"  {Nix.  Dig.  386,)  the 
creditor  cannot  be  admitted  to  a 
dividend  of  the  estate,  unless  his 
claim  has  been  presented  under 
oath,  within  the  time  limited  by 
the  order.     Gould  v.  Tinqley,     501 

68.  Nor  does  it  obviate  the  necessity 
of  presenting  the  claim  under 
oath,  that  the  order  and  notice 
requiring  claims  to  be  exhibited, 
were  made  by  the  surrogate  under 
section  22d  of  the  act  of  1855. 
Nix.  Dig  58!).  lb. 

69.  The  act  of  1855,  on  proceeding 
under  a  rule  to  bar  creditors,  hav- 
ing required  the  claim  of  the  cred- 
itor to  be  made  under  oath,  dis- 
pensed with  the  necessity  of  a  sec- 
ond presentment  of  the  same  claim 
under  proceedings  to  declare  tlie 
estate  insolvent.  lb. 


70.  The  requirements  of  both  acta 
are  imperudve,  not  directory  mere- 
ly, lb. 

71.  The  question  involving  the  con- 
struction of  a  recent  statute,  the 
decree  is  made  without  costa 
against  the  appellant.  lb. 

72.  Evidence  taken  under  an  order 
of  the  Prerogative  Court  to  be  used 
upon  the  hearing  of  an  appeal,  ia 
competent.    Sayre's  adinr  v.  Sayre, 

605 

73.  It  is  no  valid  objection  to  a  de- 
cree of  distribution,  that  it  is 
made  in  favor  of  parties  who  are 
not  applicants  therefor,  and  whose 
shares  have  been  satisfied  or  re- 
leased. 506 

74.  The  decree  of  distribution  is  final 
and  conclusive  between  the  admin- 
istrator and  the  distributees,  as  to 
the  amount  of  each  share,  and  the 
party  entitled  to  receive  it.  It  is 
an  efiectual  protection  to  the 
administrator,  against  all  claims 
for  moneys  jiaid  pursuant  thereto, 
though  it  should  prove  that  the 
decree  was  erroneous,  and  the 
raonev  paid  to  a  partv  not  entitletl. 

lb. 

75.  The  remedy  by  a  party  deprived 
of  his  rights  by  the  decree,  is  not 
against  the  administrator,  but 
against  the  distributees  who  have 
wrongully  received  the  estate.  In 
their  favor,  as  against  the  rightful 
claimant,  the  decree  does  not  oper- 
ate, lb. 

76.  It  is  no  part  of  the  office  of  a 
decree  of  distribution,  to  settle 
whether  the  share  has  been  paid, 
in  whole  or  in  part,  or  whether 
the  legal  or  equitable  interest  in 
the  fund  may  have  been  assigned. 
Its  office  is  simply  declaratory  of 
the  rights  of  the  legal  rejiresenta- 
tives  or  next  of  kin  in  the  estate 
of  the  intestate.  Jh. 

77.  The  question,  whether  an  admin- 
istrator has  actually  paid  a  claim 
under  the  order  of  distribution  or 
not,  can  only  be  properly  tried  by 
suit.  lb. 

78.  But  no  action  can  be  brouglit  by 
the  claimant,  until  the  decree  of 
distribution  is  made.  The  decree, 
it  would  seem,  must  of  necessity 
be  made,  in  order  that  the  right 
may  be  properly  tried  and  decided. 

lb. 


592 


INDEX. 


88.  Where,  as  in  our  practice,  prior 
encumbrancers  are  permitted  to  be 
made  parties  to  a  bill  lor  foreclo- 
sure and  sale  of  morlgaged  prem- 
ises, if  the  first  mortgagee,  defend- 
ant in  such  bill,  comes  in  with  hia 
mortgage,  he  simply  assents  to  the 
relief  prayed  for  by  the  complain- 
ant. '  Jb 
80.  The  order  for  distribution  may  be  89.  As  against  the  first  mortgagee,  the 
made  at  the  instance  of  the  admin-  relief  prayed  for  will  not  bo  grant- 
istrator,  or  of  any  one  of  the  dis-  ed,  unless  by  his  consent,  or  upon 
tributees.  If  made  at  the  time  of  payment  of  the  amount  actually 
the  settlement,  no  further  notice  isl  due  upon  his  mortgage.  lb. 
necessary.                                        lb. ,90.  Where,  to  a  bill  for  foreclosure 


79.  The  decree  upon  the  final' settle- 
ment and  allowance  of  adminis- 
trator's accounts,  is  final  and  con- 
clusive upon  all  parties  interested. 
It  ascertains  and  declares  the  net 
balance  in  the  administrator's 
hands,  and  the  sum  for  whicJi  he 
must  account  to  the   distributees. 

lb. 


81.  A  separate  decree  cannot  be  made' 
at  the  instance  of  each  of  the 
claimants.  Jb. 

82.  One  decree  only,  can  protect  the 
administrator.  lb. 

83.  The  design  of  the  act  of  1856, 
{Nix.  Dig.  590,  §  3,)  supplementary 
to  the  Orphans  Court  act,  was,  that 
notice  should  be  given  to  the  ward, 
of  an  intended  settlement  by  his 
guardian.  No  notice  to,  or  appear- 
ance by  the  guardian,  can  be  a 
waiver  of  the  notice  prescribed  by 
the  act.     Culver  v.  Brown,  533 

84.  Fifteen  per  cent,  commissions  hav- 
ing been  allowed  by  the  Orphans 
Court,    the    law    authorizing    but 


the  answer  of  the  owners  of  the 
equity  of  redemption  raises  the 
defence  of  usury  to  the  mortgage 
of  a  co-defendant,  such  answer  is 
in  the  nature  of  a  cross-bill,  seek- 
ing relief  against  the  usurious 
mortgage.  Jb, 

91.  Upon  a  bill  filed  by  a  second 
mortgagee  for  foreclosure,  and 
seeking  to  avoid  the  first  mortgage 
as  usurious,  no  decree  will  be 
made  declaring  the  usurious  mort- 
gage a  valid  encumbrance  for  the 
amount  actually  advanced,  unless 
by  the  consent,  express  or  implied, 
of  the  owners  of  the  equity  of  re- 
demption, to  the  proceedings.    551 


seven  per  cent.,  the  decree  must  be  92.  But    if  the   parties  interested  in 


corrected.  1  b. 

85.  The  well  settled  rule  in  equity 
is,  that  if  the  lender  comes  into 
court  seeking  to  enforce  a  usurious 
contract,  equity  will  repudiate  the 
contract.  But  if  the  borrower 
seeks  relief  against  the  usurious 
:;ontract,  the  only  terms  upon 
which  the  court  will  interfere,  are 
that  he  shall  pay  what  is  really 
and  bona  fide  due.  Jludnit  v. 
Naah,  550 

86.  A  bill  for  foreclosure  by  a  second 
mortgagee,  making  the  first  mort- 
gagee a  defendant,  as  against  such 
first  mortgagee,  is,  in  efi'ect,  a  bill 
to  redeem,  not  to  foreclose.         lb. 

87.  The  first  mortgagee  is  not  a  neces- 
sary nor  a  proper  party  to  a  bill 
by  a  subsequent  mortgagee,  if  the 
sole  design  of  the  suit  is  a  foreclo- 
sure of  tiie  equity  of  redemj)iion. 
Technically,  all  that  can  be  asked 
in  such  case  is,  that  the  complain- 
ant be  permitted  to  redeem  the 
prior  encumbrance.  lb 


the  equity  of  redemption,  concur 
in  the  prayer  of  the  bill  by  resist- 
ing the  usurious  mortgage,  and  the 
cause  is  brought  to  final  hearing 
upon  the  pleadings  and  proofs,  a 
decree  pronouncing  the  mortgage 
usurious,  and  declaring  it  an  en- 
cumbrance only  for  the  amount 
actually  advanced,  will  not  be  re- 
versed at  the  instance  of  the  owner 
of  the  equity  of  redemption.      lb. 


PRAYER. 

See  Pleading,  21. 

Pkactxce,  29,  30,  31. 


PREROGATIVE  COURT. 

See  Jurisdiction,  3. 
Practice,  72. 


INDEX 


593 


PEINCIPAL  AND  AGENT. 

1.  Where  a  party  negotiiites  with  an 
other's  agent  for  the  h)an  of  a  sum 
of  money,  and  delivers  to  tiie  agent 
a  bond  and  mortgage  duly  executed 
to  the  principal,  but  the  whole 
amount  of  money  is  not  paid  over 
to  the  mortgagor  by  the  agent ;  in 
Bueh  case,  if  the  principal  settle 
with  the  administrator  of  his 
agent,  and  excepts  the  securities  as 
evidence  of  so  much  money  ad- 
vanced by  the  agent,  and  allows 
the  amount  in  the  settlement  of 
the  account,  the  mortgagor  is 
estopped,  as  against  the  princii)al, 
from  denying  that  he  received  the 
money.  Kirkpatrick  v.  Winans,  407 

2.  If  the  money  were  not  paid  over 
by  the  agent  to  the  mortgagor,  and 
he  designed  to  look  to  the  mort- 
gagee, he  should  have  given  notice 
of  such  intention.  By  failing  to 
do  so,  and  permitting  the  settle- 
ment 10  be  made,  he  is  estopped 
from  making  any  claim  against 
the  mortgagee.  408 

3.  Tiie  principal  is  not  liable  for  the 
unauthorized  or  wrongful  act  of 
liis  agent  in  withholding  a  part  of 
the  money,  or  in  giving  his  own 
notes  payable  at  a  future  day,  in 
lieu  of  the  money  of  the  principal 
in  his  hands.  The  remedy  is  against 
the  agent  only.  lb. 

See  Partnership,  4. 
Usury,  3. 


PUKCHASER. 

1.  Equity  will  protect  the  title  of  a 
bona  fide  purchaser  for  value,  with- 
out notice  of  fraud,  though  he  pur- 
chase from  a  person  with  notice. 
Smith  V.  Vreeland,  198 

2.  A  purchaser  with  actual  or  con- 
structive notice  of  fraud,  though  he 
pay  a  valuable  consideration,  takes 
title  subject  to  all  the  equities  to 
which  it  was  liable  in  the  hands  of 
the  vendor.  In  such  case  he  will 
not  be  permitted  to  protect  him- 
self against  such  claims,  but  liis 
own  title  will  be  postponed  and 
made  subservient  to  them.  Jb. 

3.  A  purchaser  is  presumed  to  have 


knowledge  of  all  the  facts  disclosed 
by  the  deeds  under  which  he 
claims  title.  199 

4.  A  purchaser  cannot  claim  to  be  a 
bona  fide  purchaser  without  notice, 
where  the  facts  patent  upon  the 
face  of  his  title  and  under  his  im- 
mediate observation,  are  sutiicient 
to  put  him  upon  inquiry.  lb. 

5.  Where  a  pany  has  proceeded  to  a 
sale  under  his  execution  at  law, 
and  become  himself  the  purchaser 
of  the  property  for  a  very  inade- 
quate consideration,  the  court  will 
not  set  aside  the  prior  conveyances, 
and  perfect  the  title  under  the  ex- 
ecution, to  the  prejudice  of  other 
judgment  creditors.  All  that  the 
complainant  can  ask  in  equity  is 
the  payment  of  his  debt.  If  his 
legal  rights  are  more  extensive, 
they  must  be  enforced  at  law.    lb. 

6.  A  court  of  equity,  in  the  exercise 
of  its  discretion,  will  not  compel  a 
purchaser  to  accept  a  title  depend- 
ing upon  an  illegal  and  invalid 
sale,  while  it  remains  open  to  re- 
view, although  the  judgment  unre- 
versed might  be  conclusive  upon 
the  party's  rights.  Young's  adm'r 
v.  Rallibone,  225 

7.  Where  the  covenantee,  in  a  con- 
tract for  the  conveyance  of  land, 
permits  a  purchaser  to  acquire 
title,  take  possession  of  the  premi- 
ses, and  pay  the  purchase  money 
without  an  intimation  of  his  claim, 
under  the  covenant,  or  of  his  will- 
ingness to  accept  the  title,  he  has 
nd  claim  to  relief  in  equity.  Van, 
Doren  v.  Robinson,  2o7 

8.  The  title  of  a  purchaser  under  a 
sheriff's  sale,  is  co-extensive  with 
the  description  contained  in  the 
mortgage,  the  bill  to  foreclose,  and 
the  writ  o[  fieri  facias  under  which 
the  sale  was  made.  McGee  v. 
Smilh,  462 

9.  It  is  not  necessary  that  the  decree 
should  describe  the  premises  pre- 
cisely ;  it  is  usual  to  designate  them 
in  the  decree  by  reference  to  the 
bill.  lb. 

10.  A  party  to  a  foreclosure  suit  is 
bound  by  the  decree,  and  cannot 
contest  the  title  of  the  purchaser 
under  it,  while  the  decree  and  the 
sale  and  conveyance  remain  in 
force.  lb. 


594 


INDEX. 


11.  Where  a  defendant  has  filed  an 
answer  (o  a  bill  to  foreclose,  a  pui 
chaser  at  a  sheriff's  sale  under  the 
decree,  is  presumed  to  have  pur 
chased  upon  the  faith  of  that  an 
swer,  and  in  reliance  upon  the 
truth  of  its  statements.  Such  de- 
fendant is  estopped  from  denying 
the  truth  of  the  answer,  to  the  pre- 
judice of  the  purchaser's  title.  4G3 

See  Agreement,  6,  12. 
Sale  of  Land,  8. 


KENT. 

See  Jurisdiction,  5. 
Pleading,  36. 


EEVIVOK. 

See  Practice,  5,  9. 

SALE  OF  LAND. 

1.  A  sale  by  auditors  in  attachment 
of  several  tracts  of  land,  lliat  might 
conveniently  and  reasonably  have 
been  sold  separately,  and  where  a 
sale  of  part  would  have  been  suf- 
ficient to  satisfy  the  debts  of  the 
plaintiff  and  the  applying  credi- 
tors, is  a  clear  breach  of  trust,  and 
will  be  set  aside  as  void.  Johnson 
V.  Oarrett,  31 

2.  A  bona  fide  purchaser  of  land,  sub- 
ject to  the  lien  of  an  attachment, 
is  entitled  to  relief  against  an  il- 
legal or  inequitable  sale  by  the 
auditors.  I-?. 

3.  Where  a  judicial  sale  is  set  aside 
on  the  ground  of  gross  negligence 
or  abuse  of  trust,  the  officer  mak- 
ing such  sale,  as  well  as  the  pur- 
chaser acting  in  collusion  with 
him,  will  be  condemned  in  costs. 
But  where  there  is  no  charge  of 
actual  fraud  or  collusion,  neither 
the  officer  nor  purchaser  will  be 
condemned  in  costs.  lb. 

Land  owned  by  two  tenants  in  com- 
mon was  ordered  to  be  sold  by  com- 
missioners appointed  to  make  par- 
tition thereof.  At  the  first  sale  the 
land  was  struck  off  to  one  of  the 
tenants  in  common,  who  refused  to 


accept  the  deed  or  pay  the  purchase 
money  The  premises  were  there- 
upon again  exposed  to  .«ale,  and 
struck  off  for  a  less  sum.  By  the 
terms  of  the  first  sale,  if  the  pur- 
chaser refused  to  comply  with  the 
conditions,  the  property  was  to  be 
re-sold,  and  the  purchaser  held 
liable  for  the  loss.  The  deficiency 
on  the  second  sale  was  $1,200.  On 
the  distribution  of  the  proceeds  of 
sale,  the  co-tenant  claimed,  as 
against  the  purchaser  at  the  first 
sale,  an  allowance  for  the  loss  sus- 
tained by  reason  of  iiis  non-com- 
pliance with  the  conditions.  The 
claim  being  disputed,  and  an  order 
of  distribution  having  been  made, 
the  commissioners  refused  to  pay 
over  the  money  in  compliance  with 
tlie  terms  of  the  order,  and  filed  a 
bill  of  interpleader,  asking  to  have 
the  right  determined.  There  was 
some  dispute  as  to  the  terms  of  the 
order  for  distribution.  Held — 
The  only  legal  evidence  of  the 
terms  of  the  order  of  the  court,  is 
the  record,  or  a  duly  certified  copy 
thereof.  Evidence  of  what  passed 
at  the  time  of  making  it,  or  of  the 
precise  terms  of  the  order  itself  as 
directed  by  the  court,  is  incompe- 
tent. 

The  deficiency  incurred  by  a  re- 
sale of  the  property,  can  only  be 
recovered  by  an  action  brought  by 
the  commissioners,  and  when  re- 
covered, be  distributed  by  order 
of  the  court,  as  part  of  the  money 
arising  from  the  sale  of  the  land. 
Tiie  deficiency  can  constitute  no 
legal  set-ofl'  against  the  claims  of 
the  defauliing  co-tenant  for  his 
share  of  the  proceeds  of  the  sale 
under  the  order  for  distribution. 
The  case  furnishes  no  ground  for  a 
bill  of  interpleader  by  the  com- 
missioners. Michner  v.  Lloyd,  38 
If  the  sale  is  by  the  acre,  and  the 
statement  of  the  number  of  acres 
is  of  the  essence  of  the  contract, 
the  purchaser,  in  ease  of  a  defi- 
ciency, is  entitled  in  equity  to  a 
corresponding  deduction  i'rom  the 
price.      Wearl  v.  Rose,  290 

Where  the  difference  between  the 
actual  and  estimated  quantity  of 
acres  of  land  sold  in  the  gross,  is 
so  great  as  to  warrant  the  conclu- 


INDEX. 


595 


sion  tliat  the  parties  would  not 
have  contracted,  had  tlie  truth 
been  known,  in  such  case  the  party 
injured  is  entitled  to  relief  in 
equity  on  the  ground  of  gross  mis- 
take, lb. 


SET-OFF. 
See  Sale  of  Land,  6. 

SHERIFF'S  SALE. 

1.  Whether  the  execution  commands 
the  sheriff  to  sell  so  much  of  the 
premises  as  may  be  necessary  to 
satisfy  the  decree,  or  to  raise  the 
sum  required  out  of  the  premises, 
the  duty  imposed  upon  him,  as  to 
the  quantity  of  land  to  be  sold,  is 
the  same.  His  duty,  in  either 
event,  is  to  sell  only  so  much  of  the 
premises  as  may  be  necessary  to 
satisfy  the  requirements  of  the  ex- 
ecution, provided  such  portion  can 
be  conveuiently  and  reasonably 
detached  from  the  residue  of  the 
property.     Vanduijne  v.  Vanduyne, 

2.  A  mere  error  of  judgment,  or  mis- 
taken exercise  of  discretion,  by 
the  sherifT,  in  the  absence  of  fraud 
or  unfairness  in  the  sale,  affords 
no  ground  for  the  interference  of 
the  court.  lb. 

3.  A  judicial  sale  will  not  be  inter- 
fered with,  when  the  party  seek- 
ing relief  has  been  guilty  of  laches 
in  the  pursuit  of  his  remedy.     lb 

4.  Motion  denied  witliout  costs,  the 
applicant  acting  in  behalf  of  mi- 
nors, lb 

5.  Gross  inadequacy  of  price  in  tiie 
absence  of  fraud,  mistake,  illegal 
ity,  or  surprise,  is  not  sufiicient  to 
set  aside  a  sheriff's  sale  and  con- 
veyance under  an  execution  at 
law.     Smith  v.  Duncan,  240 

6.  A  court  of  equity  will  not  afl'onl 
relief  where  the  complainant  has 
been  guilty  of  gross  laches,  or  where 
the  injury  was  caused  by  his  own 
inexcusable  negligence  and  inatten- 
tion to  his  interests.  76 

7.  A  sheriffs  sale  and  conveyance 
will  not  be  set  aside  where  the 
property  has  been  resold  to  a  third 


party  for  a  valuable  consideration, 
wilhout  notice  of  the  complain- 
ant's equity.  Where  the  equities 
are  equal  the  court  will  not  inter- 
fere with  the  party  holding  the 
legal  title,  either  for  discovery  or 
relief.  lb. 

8.  The  legal  title  to  land  is  not  affect- 
ed by  a  sheriff's  deed,  where,  at  the 
time  of  the  levy  and  sale,  the  title 
was  not  in  the  defeftdant  in  execu- 
tion.    Belford  v.  Crane,  265 

9.  The  well  settled  doctrine  of  the 
court  of  equity  is,  that  mere  inade- 
quacy of  jyrice  affords  no  ground 
of  relief,  either  against  a  private 
contract  or  a  judicial  sale.  Cum- 
mins V.  Little,  48 

10.  But  inadequacy  of  price  may  be 
so  gross  and  unconscionable  as  to 
shock  the  conscience,  and,  in  the 
case  of  a  private  contract,  to 
amount  to  conclusive  and  decisive 
evidence  of  fraud ;  or,  in  the  case 
of  a  judicial  sale,  to  constructive 
fraud  and  abuse  of  trust.  lb. 

IL  That  is  a  public  and  a  proper 
place  for  setting  up  advertise- 
ments, contemplated  by  the  act 
regulating  sales  of  real  estate, 
which  is  likely  to  give  information 
to  those  interested,  and  who  may 
probably  become  bidders  at  tlie 
sale.  lb. 

12.  The  sherifif  is  bound  to  conduct 
the  sale  so  as  to  protect  the  rights 
and  promote  the  interests  of  all 
parlies  in  interest,  and  to  this  end 
to  secure,  as  far  as  practicable,  the 
most  general  diffusion  of  the  notice 
of  sale.  lb. 

13.  The  true  test  of  a  proper  exercise 
of  discretion  by  the  sheriff  in  set- 
ting up  notices  is,  whether  he  has 
set  them  up  as  a  discreet  man, 
desirous  of  effecting  a  sale  of  his 
property  to  the  greatest  advantage, 
would  have  done.  lb. 

14.  If  a  sheriff  abuses,  to  the  detri- 
ment of  subsequent  encumbi-an- 
cers  or  of  the  defendant  in  execu- 
tion, the  discretion  vested  in  him 
by  law  to  make  sale  under  execu- 
tion, a  court  of  equity  will  grant 
relief,  although  there  has  been  a 
formal  compliance  in  the  conduct 
of  the  sale  with  all  the  require- 
ments of  the  statute.  49 

15.  It  is    not    necessary   that    there 


596 


INDEX. 


should  be  actual  fraud,  committed 
or  meditated.  Tiie  abii^e  of  discre- 
tion in  the  execution  of  tlie  trust 
is  a  constructive  fraud,  against 
which  equity  will  relieve.  lb. 

]6.  Where  a  sale  by  a  public  officer  is 
conducted  in  violation  of  tlie  spirit 
and  policy  of  the  law,  and  so  as  in 
fact  to  defeat  the  just  claims  of 
encumbrancers,  or  greatly  to  pre- 
judice the  rights  of  llie  defendant 


of  being  performed  by  reason  of 
some  difficulty  inherent  in  the  sub- 
ject matter  of  the  contract,  a  spe- 
cific performance  will  not  be  de- 
creed, lb. 
8.  Specific  performance  is  relief  which 
equity  will  not  give  unless  in  cases 
where  the  parties  seelting  it,  come 
as  promptly  as  the  nature  of  the 
case  will  permit.  Van  Doren  v. 
Robinson,                                       257 


in  execution,  the  sale  will   be  set  9.  A    party,    who   seeks   the   specific 


aside,  though  the  fornuil  require 
raents  of  the  statute  have  been 
complied  with.  lb. 

SPECIFIC  PERFORMANCE.  . 

1.  The  enforcement  of  the  specific 
performance  of  a  contract  is  an 
exercise  of  the  extraordinary  juris- 
diction of  the  court,  resting  in 
sound  discretion.     Gariss  v.  Garis.'f, 

79 

2.  Specific  performance  will  not  be 
decreed,  wiiere  the  party  seeking 
it  lias  been  guilty  of  laches,  or  neg- 
ligent in  his  application.  lb. 

3.  Where  a  contract  is  certain  and 
fair  in  all  its  parts,  and  for  an  ade- 
quate consideration,  and  the  parly 
seeking  its  enforcement  has  held 
himself  ready  to  perform  it  accord- 
ing to  its  terms,  without  default 
on  his  jiart,  and  has  been  pi'ompt 
in  his  application  for  relief,  a  court 
of  equity  will  decree  a  specific 
performance  of  the  contract,  as  a 
matter  of  course.  Hopper  v.  Hopper, 

147 

4.  It  constitutes  no  objection  to  a  de 
cree  for  specific  performance,  that 
the  application  is  made  to  enforce 
ihe  payment  of  the  purchase  money, 
and  not  to  compel  a  delivery  of  the 
title.  "        lb 

5.  The  doctrine  is  well  established 
that  the  remedy  is  mutual,  and 
that  the  vendor  may  maintain  his 
bill  in  all  cases  where  the  pur- 
chaser could  sue  for  a  specific  per- 
formance of  the  agreement.         lb 

6.  Mere  pecuniary  inability  to  fulfil 
an  engagement  does  not  discha 
the  olJigation  of  the  contract,  nor 
does  it  constitute  any  defence  to  a 
decree  for  specific  performance.  lb. 

7.  Where  the  contract  is  not  capable 


performance  of  a  contract,  must 
show  that  he  has  performed,  or 
been  ready  and  willing  to  perform, 
all  the  essential  terms  of  the  con- 
tract. Thorp  V.  Petlit,  48 
10.  The  answer  of  the  defendant 
being  directly  responsive  to  the 
allegations  of  the  bill,  and  a  full 
denial  of  its  equity,  injunction  dis- 
solved,                                            lb. 

See  Agreement,  4  to  10. 


STATUTES. 


the 

the 


It  18  an  established  rule  in 
exposition  of  statutes,  that 
intention  of  the  legislature  is  to  be 
derived  from  a  view  of  the  whoie, 
and  of  every  part  of  the  Etatute 
taken  and  compared  together.  The 
real  intention,  when  ascertained 
will  prevail  over  the  literal  sensa 
of  terms.  When  words  are  net 
explicit,  the  intention  is  to  be  col- 
lected from  the  context,  from  the 
occasion  and  necessity  of  the  law, 
from  the  mischief  felt,  and  the 
remedy  in  view  ;  and  the  intention 
is  to  be  taken  or  presumed,  accord- 
ing to  what  is  consonant  to  reason 
and  good  discretion.  3Iorris  Canal 
and  Banking  Co.   v.   Central  Mail- 


road  Co., 


419 


SURPRISE. 

See  Evidence,  16. 
Sheriff's  Sale,  5. 


TAX. 

By  the  act  of  1854,  Nix.  Dig.  851, 
§  64,  when  the  mortgagee  resides 


INDEX. 


597 


■  in  a  different  township  from  tliat 
in  whicli  the  mortgaged  premises 
lie,  tiie  tax  on  the  money  secured 
by  the  mortgage  is  to  be  assessed 
against  and  paid  by  the  mortgagor 
in  the  townslisliip  where  tlie  lands 
lie,  and  the  receipt  of  the  collector 
therefor  is  made  a  legal  payment 
for  so  much  of  the  interest  of  the 
mortgage,  and  is  to  be  allowed  and 
deducted  therefrom  by  the  mort- 
gagee.    Held — 

1.  Ths  payment  of  the  tax  and  the 
receipt  of  the  collector  is  a  legal 
payment  of  so  much  interest,  not 
of  principal ;  a  payment  of  the 
accrued  and  accruing  interest,  not 
of  interest  to  grow  due  at  some 
future  time. 

2.  When  a  mortgagor,  entitled  to  have 
the  tax  assessed  against  and  paid 
by  him  deducted  from  the  interest, 
has  paid  the  interest  in  full  as  it 
became  due,  without  deducting  the 
tax,  he  caimot  afterwards  claim 
any  deduction  therefor  from  the 
arrears  of  interest.  Keener/  v.  At 
wood,  35 

3.  The  power  to  sell  land  for  the  paj'- 
ment  of  taxes,  is  a  naked  power, 
not  coupled  with  an  interest,  and 
must  be  exercised  in  strict  accord- 
ance with  the  provisions  of  the 
statute.  Every  prerequisite  to  the 
exercise  of  the  power  must  pre- 
cede it.   Hopper  v.  Mallesoii's  ex'rs, 

382 

4.  To  establish  a  title  under  a  sale  for 
taxes  it  is  incumbent  on  the  pur- 
chaser to  show  that  all  the  prere- 
qiusites  to  the  exercise  of  the  power 
of  sale  have  been  complied  with 
The  deed  is  not  even  prima  facie 
evidence  of  that  fact.  lb. 

5.  It  is  essential  to  the  validity  of  a 
sale  of  land,  under  the  "  act  to 
make  taxes  a  lien  on  real  estate  in 
the  county  of  Passaic,  ajid  to  au- 
thorize the  sale  of  the  same  for 
the  payment  thereof,"  {Pamph.  L. 
1852,  p.  247,)  that  it  should  appear 
that  the  tax  was  assessed  on  ac- 
count of  tlie  property  sold.  lb. 

6.  The  recital  of  the  tax  warrant, 
"  whereas  it  appears  to  the  mayor 
and  aldermen  of  the  city  of  Pater- 
son,  that  an  assessment  of  four  dol- 
lars and  fifty  cents  of  taxes,  &c.," 
is  not  legal  evidence  of  the  fact  of 


an  assessment,  nor  of  demand  of 
payment.  lb. 

7.  The  assessment  itself  is  the  only 
competent  and  legal  evidence  of 
the  fact  of  an  assessment.  lb. 

8.  Where  the  tax  warrant  directs  a 
sale  to  be  made  to  raise  a  sum 
larger  than  the  whole  amount  due, 
it  is  a  clear  excess  of  autiiority,  and 
renders  the  warrant,  so  far  as  it  af- 
fects tlie  land  in  question,  null  and 
void.  lb. 

9.  Even  if  all  the  requirements  of  the 
statute  had  been  strictly  complied 
with,  so  as  to  confer  upon  the  pur- 
chaser at  such  sale  a  valid  title 
against   the    heirs   of    the   former 

.  owner,  and  all  claiming  under 
them,  a  prior  mortgage  given  by 
their  ancestor  would  not  thereby 
have  been  extinguished.  3S3 

10.  The  phrase  owner  or  owners  {Nix. 
Dig.  853,  §  77,  and  Pamph.  L.,  1852, 
p.  249,  ^  7,)  was  used  to  denote 
the  owner  of  an  estate  in  possession 
at  the  time  of  the  assessment,  and  not 
a  prior  owner,  or  the  owner  of  an 
estate  in  expectancy,  or  of  any  ex- 
ecutory or  contingent  interest,  and 
the  design  of  the  act  was  to  make 
the  interest  of  such  owner  only, 
and  those  claiming  under  him,  lia- 
ble for  the  tax  assessed.  Jb. 

11.  The  right  of  a  mortgagee  is  not 
defeated  by  a  tax  sale,  where  the 
mortgage  was  not  given  by  those 
who  were  owners  of  the  land  at  the 
time  of  the  assessment,  or  against 
whom  the  tax  was  ii-ssessed,  but  is 
a  title  paramoimt  to  theirs.  Such 
mortgage  is  a  valid  aiui  subsisting 
encumbrance  upon  tiie  land  in  the  j 
hands  of  the  purciiaser  at  the  sale. 

lb 

TENANT  FOR  LIFE. 

A  tenant  for  life  is  entitled  to  worK 
a  mine,  quarry,  clay-pit  or  sand- 
pit, which  has  been  opened  and 
used  by  the  former  owner.  It  is  a 
mode  of  enjoyment  of  the  land  to 
which  he  is  entitled.  Heed's  ex'rs 
V.  Reed,  248 


TRUST  AND  TRUSTEE. 
1.  Where  real  estate  is  in /aci  paid  for 


598 


INDEX. 


with  the  funds  of  a  company,  there 
is  clearly  a  res^idtinr/  truat  in  favor 
of  the  company,  altlioiigh  the  deed 
therefor  is  made  absolute  to  a  third 
party,  and  purports  upon  its  face 
to  be  for  his  own  use  and  benefit. 
Stratton  v.  Dialogue,  70 

2.  A  party  so  taking  the  title,  be- 
comes a  trustee  for  the  creditors 
and  stockholders,  and  the  trust 
will  be  enforced  lor  their  benefit  at 
the  instance  of  the  receiver.       lb. 

3.  Where  a  mortgage  is  given  to  se- 
cure a  trust  fund  belonging  to  the 
mortgagor,  as  between  himself  and 
the  holder  of  a  second  mortgage 
given  by  him,  he  can  have  no  claim 
in  equity  to  the  fund,  until  the 
second  mortgage  is  satisfied.  Tap- 
yjan's  ex'r  v.  Ricamio,  89 

4.  It  is.within  tiie  power  of  a  court  of 
equity  to  protect  the  interests  of 
legatees  in  remainder,  during  the 
life  of  the  tenant  for  life;  and  the 
power  will  be  exercised,  not  only 
in  behalf  of  the  legatee,  but  also  of 
his  assignee,  or  of  any  other  per- 
son legally  entitled  to  the  fund, 
upon  the  determination  of  the  es- 
tate for  life.  lb. 

5.  If  a  trust  fund  is  in  danger  of  being 
diverted  to  the  injury  of  any  claim- 
ant having  a  present  or  future  fixed 
title  thereto,  the  administration  of 
the  fund  will  be  duly  secured  by 
the  court,  in  such  manner  as  the 
court  may  in  its  discretion,  under 
all  the  circumstances,  deem  best 
fitted  to  the  end.  Jb. 

6.  Upon  the  death  of  one  of  several 
cotrustees,  the  office  of  trustee  will 
devolve  with  the  estate  upon  the 
survivor,  and  ultimately  upon  the 
heir  or  personal  representatives  of 
the  last  survivor.  Trusts  of  real 
estate,  upon  the  death  of  the  trus- 
tee, devolve  upon  his  heir-at-law; 
trusts  of  personalty  vest  in  his  ex- 
ecutor or  administrator.  Schenck 
V.  ScJienck's  ex'rs,  174 

7.  If  a  trustee,  by  his  own  negligence, 
suffers  his  co-trustee  to  receive  and 
waste  the  trust  fund,  when  he  has 
the  means  of  preventing  such  re- 
ceipt by  the  exercise  of  reasonable 
care  and  diligence,  he  will  be  held 
res|)onsible  for  the  loss.  175 

8.  Where  the  duty  of  a  trustee  is  a 
matter  of  doubt,  it  is  his  undoubt- 


ed right  to  ask  and  receive  the  aid 
and  direction  of  a  court  of  equity 
in  the  execution  of  his  trust.  Kear- 
ney v.  Macomb,  189 
,  A  change  in  the  ecclesiastical  rela- 
tion of  a  church  for  whose  benefit 
properly  is  held  in  trust,  does  not 
necessarily  involve  any  perversion 
of  the  trust,  or  diversion  of  the 
fund  from  its  legitimate  purpose. 
Swedesborough    Church   v.  Shivers, 

453 

See  Deed,  3. 

Executors  and  Adminis- 

TRATOKS,  1  to  6. 
Fraud,  1,  3. 
Husband  and  Wife,  1,  6, 7. 


USURY. 

1.  It  is  no  valid  objection  to  a  de- 
fence of  usury,  that  the  mortgage 
sought  to  be  tbreclosed  was  given 
for  a  part  of  the  pwchase  money 
upon  a  contract  for  the  sale  of 
land,  and  not  for  a  technical  loan 
of  money.    Diercks  f.  Kennedy,  210 

2.  The  taking  of  illegal  interest,  either 
upon  a  lending  of  money,  or  upon 
the  forbearance  cf  a  debt,  consti- 
tutes usury.  lb. 

3.  If  an  agent,  in  miking  a  loan  of 
money,  accept  from  the  borrower  a 
bonus  beyond  the  legal  rate  of  in- 
terest, such  act  o*'  the  af^ent  will 
not  render  the  ccntract  usurious, 
if  the  bonus  was  t^vken  without  the 
knowledge  of  the  i)rincipiil,  and 
was  not  received  b/  him.  Muir  v. 
Newark  Savings  hipiitution,         537 

4.  The  reservation  of  interest  for 
money  actually  on  hand  and  sub- 
ject to  the  call  of  the  borrower, 
during  the  time  Ik*  is  engaged  in 
completing  his  securities,  is  not 
usurious.  lb. 

5.  The  essence  of  the  o"^ence  of  usury 
is  a  corrupt  agreemeut  to  contra- 
vene the  law.  Any  ontrivance  to 
evade  the  statute,  and  to  enable 
the  lender  to  receive  n'ore  than  le- 
gal interest  for  his  money,  renders 
the  contract  a  corrupt  one.  And 
the  law  will  infer  the  corrupt 
agreement,  when  it  appears  by  the 
face  of  the  papers  or  otherwise, 
that  illegal  interest  was  intention- 


INDEX. 


599 


allv  reserved,  although  the  ille- 
galily  arose  from  a  uiistiikeii  con 
structiou  of  the  law.  1  b. 


VENDEE. 

See  Agreement,  6. 

VOLUNTARY     CONVEYANCE. 

See  Fraud,  5. 

Husband  and  Wife,  2,  4,  5. 
Married  Women,  10. 

WILL. 

1.  Where  a  testator,  by  liis  will,  pro- 
vides that  his  minor  chiklren  shall 
receive  their  maintenance  u{)on 
his  homestead  farm,  so  long  as  the 
devisees  and  their  mother  agree  to 
continue  upon  it  andsnpixirt  them 
tliere,  if  the  ciiildren,  without  the 
consent  of  their  mother  and  tiie 
devisees,  leave  the  farm  din-ing  the 
period  for  which  the  testator  pro- 
vided for  their  maintenance  there, 
they  can  claim  it  in  no  other  form  ; 
but  otherwise,  if  they  leave  by  con- 
straint, and  not  from  choice.  Jor- 
dun  V.  Clark,  243 

2.  Where  an  adequate  motive  for  the 
destruction  of  a  will  is  assigned  by 
the  i>arty  seeking  to  establish  it, 
and  clearly  confirmed  by  the  evi- 
dence, the  court  will  not,  upon  mere 
conjecture,  impute  an  inaflequate 
and  dishonest  motive.  Wyc/coffv. 
Wyckoff,  _  401 

3.  The  true  rule  is,  that  the  will  nuty 
be  established  upun  sali^ifactory 
proof  of  its  destruction,  and  of  its 
contents  or  substance.  Whether 
the  proof  be  by  one  witness,  or 
by  many,  it  must  be  clear,  satis- 
factory, and  convincing.  //). 

4.  The  cost  of  establishing  the  will, 
and  of  taking  out  letters  of  admin- 
istration, ordered  to  be  jmid  out  of 
the  estate,  the  burden  falling  upon 
the  residnary  legatee,  by  wiiose  act 
the  costs  were  oceasioneil.  lb. 

Isaac  Howe,  by  his  last  will  and  tes- 
tament, gave  as  follows:  "  1  give 
and  devise  unto  Sarah  White  the 
sum  of  §5,000,  to  be  paid  unto  the 
said  Sarah  White  ;  and  if  the  said 
Sarah  White  die  without  an  heir 
or  heirs,  the  said  sum  of  $5,000  is 


to  go  to  Leonard  Crum,  the  son  of 
Henry  Criun."     Held — 

5.  Tliat  the  first  legatee  takes  a  pres- 
ent vested  interest  in  the  fund, 
liable  to  be  divested  upon  the  con- 
tingency of  her  dying  without  is- 
sue. The  limitatiiin  over,  being 
upon  a  definite  failure  of  issue,  is 
good  by  way  of  executory  bequest. 
Hoice's  ex'rs  v.  While,  411 

G.  A  direction  by  a  testator  "  that  all 
the  rest  and  residue  of  his  estate 
of  what  kind  soever  there  might 
be  at  the  time  of  his  death,"  should 
be  converted  into  money  by  his 
executors,  &c.,  extends  to  and  in- 
cludes such  real  estate  as  he  may 
have  arqnirfd  after  the  making  of 
the  will,  and  sucli  land  is  subject 
to  the  power  of  sale  conferred  upon 
the  executors.  Fluke  v.  Fluke's 
ex'rs,  478 

7.  Until  the  sale  be  made,  the  legal 
title  descends  to  and  vests  in  the 
heirs-at-law  of  the  testator,  as  ten- 
ants in  common.  J  b. 

8.  The  heir-at-law.  takes  the  legal 
title  charged  with  the  trusts  created 
by  the  will.  Equity  will  not  in- 
terfere witii  the  execution  of  the 
trusts  by  the  executors.  It  regards 
as  actually  performed,  that  which 
is  directed  to  be  done.  479 

9.  Lands  directed  by  the  testator  to 
be  sold  and  converted  into  money, 
and  tiie  proceeds  distributed  either 
among  the  lieirs  or  other  legatees, 
is  regarded  as  a  gift  of  money.  lb. 

10.  Where  the  whole  beneficial  inter- 
est in  the  land  directed  to  be  con- 
verted into  money,  belongs  to  the 
person  or  persons  for  whose  use  it 
is  given,  equity  will  not  compel  the 
trustee  to  execute  the  trust  against 
the  wishes  of  the  cestui  que  trust, 
but  will  permit  him  to  take  tlie 
land,  if  he  elect  to  do  so  before  the 
conversion  lias  actually  been  made. 
But  where  there  are  several  cestui 
que  intsls  taking  diHerent  interests 
under  the  will  from  what  they 
would  do  as  heirs-at-law,  there  is 
no  case  for  the  application  of  the 
doctrine  of  election,  and  the  ex- 
ecutor must  perform  the  trust  cre- 
ated by  the  will.  Jb, 

See  Executors   and    Administra- 
tors, 5. 
Legacy. 


D     000  551  676 


